


.CV 









,^^' "^^ 






■0 



c^ ■ 






•/ v 



\: 



..•'^ 



V-. 



•^cP .<;> 



xV 



,-,\' 



^^"^. 









'% ,<^' 












*/ ^ 



'-- V 



■i^^ 












^1,^ 
%.<^^' 









i^^r. 









.\^ 









""^.. <^' 






x\^^ 






'\. 



.0- 



V* 



N 



<-■ 



V 












.•^^^ 



<0^' 



■>\. 









V 



a\" 



.s 



.0 

'\ a- 



^ 









^0^^ 



V 



/.>o 



.>^ 






^^ 



■^. V 






^^^ 



%^^ 



''^ 



•^/- 









,0 



H -71, 



'.d^ 



iik?*i>./ 



? ,0 o, 'Z^ ■ - 



'x ^, 



-.v\ 



^'X-^' 






O. * 






-- ^^ '.^c ''"' 



^^^'^^. 



o\" 









'\^ <- 4 



^ X <<j 



,:^^1P.^ 'N^ 



\ 









:-'V?:%'-, '' 










x^^'^ 



^^x-i- 



■'^^,# 



'\' 



</^_ 







5^ 



■#-■ 



0^ 



^^ V' 



f^-^Blf: 71 /" 



-^V^^, -^' ^^ 









.5 -:> 



\'^" o' 



t/> \' 



^ -^5fA,'. ^^^ :m 



Ob "> , 












o^^ 



.^^^•\ 






.0^ .- " 



^> 



v^' 




>^^.;,,^ 



,# 










■-y^' 



^^ v^' 









1^ ^-.^ 






...>■.,*' 



\' 



>^ .\ 



BOOKS BY PROFESSOR BURGESS 

PUBLISHED BY CHARLES SCRIBNER'S SONS 



THE RECONCILIATION OF GOVERNMENT 

WITH LIBERTY. 8vo net $3.50 



AMERICAN HISTORY SERIES: 

THE MIDDLE PERIOD. laino . . net $1.00 



THE CIVIL WAR AND THE CONSTI- 
TUTION. 3 vols. lamo . ... net Sa.oo 



RECONSTRUCTION AND THE CONSTI- 
TUTION. i2mo ne< $1.00 



THE RECONCILIATION OF 
GOVERNMENT WITH LIBERTY 



THE EECONCILIATION OF 
GOVEENMENT WITH LIBEETT 



BY 



JOHN W. BURGESS, Ph.D., Ju.D., LL.D. 

FORMERLY PROFESSOR OF POLITICAL SCIENCE AND CONSTITUTIONAL LAW, AND DEAN 

OF THE FACULTIES OF POLITICAL SCIENCE, PHILOSOPHY AND 

PURE SCIENCE, IN COLUMBIA UNIVERSITY 



NEW YORK 

CHARLES SCRIBNER'S SONS 

191S 



1^, 






Copyright, 1915, by 
CHARLES SCRIBNER'S SONS 



Published October, 1915 




OCT 16 1915 

©CI,A414082 



INTRODUCTION 

It has been the search of the ages to find a political 
system, the travail of the ages to construct one, in which 
Government and Liberty shall be reconciled, in which 
each of these all-comprehending means of civilization shall 
strengthen the other and in which finally each shall be the 
fulfilment of the other. Down to the present moment 
this millennial equiHbrium has not been fully attained and 
mankind always has been, and still is, in danger of diverg- 
ing from the true path which leads to it, towards despotism 
on the one side or anarchy on the other. The only pro- 
tection against these dangers is a correct and profound 
appreciation of the historical development of the state. 
Such a study is, however, so exacting, not to say exhaust- 
ing, that it must be made for the mass of men as brief 
and concise as pos.ible. 



CONTENTS 
BOOK I— ASIA AND AFRICA 

PAGE 

I. The Effort of Asia to Solve Tms Problem . i 

The religious genius of Asia — The independent states of Asia — The basis 
of the ancient Chinese state — The Government founded by the Chun dy- 
nasty — ^The Won Wang dynasty and the Feudal System in China — Confucius 
and his political philosophy — The Imperial pohcy towards Confucianism — 
The triumph of Confucianism in Government — The Censors and the Council 
of Censors — The Manchu Government and Confucianism — The Constitution 
of 1906 and the Revolution of 191 1 — Individual Immunity in the Constitution 
of 191 1, and Judicial protection — Conquest of Japan by Chinese adventurers 
— The Mikado Absolutism — Buddhism and the Feudal System in Japan — 
The establishment of the Shogunate and the Feudal System in Japan — The 
despotism of the Shogun — Re-estabUshment of the Mikadoate — ^The Con- 
stitution of 1889 — The Bill of Rights in the Japanese Constitution — ^The 
Judicial Power and Private Rights — The Japanese Constitution a charter of 
despotism — The political system of Ancient Persia — Mohammedanism and 
Government in Persia — Mahomet and the political transformation in Arabia 
— The Koran as a hmitation on despotism — Persian Government limited by 
the Mohammedan priesthood — The power of the Mujtahid of Kerbela — 
Decline of Mohammedanism — The Constitution of 1906 — ^The Revolution 
of 1908 — The Establishment of the Ottoman Empire— Mohammedanism 
and the Empire of the Osmanli — The Turkish Empire in Asia and in Europe 
— The Sheikh ul Islam and the Ulemas; their place in the Government — The 
new mihtary system and the Harem — ^The decadence of the Ottoman Empire 
— ^The Turkish Constitution of 1876 — The Suspension of the Constitution of 
1876 and the decUne of Mohammedanism — The Revolution of 1908 and the 
advent of the Young Turks — Civil Liberty under the present Turkish Con- 
stitution — ^The Senate as defender of Civil Liberty — The failure of Asia to 
solve the problem of the reconciliation of Government and Liberty. 

II. The Effort of Africa . 28 

The independent states of Africa — Abyssinia, Liberia, and Morocco — Li- 
beria not to be considered — The Abyssinian Empire — Abyssinian history 
and institutions — Effect of contact with the outer world — Growth of the Im- 

vii 



viii CONTENTS 

perial absolutism — ^The limitation imposed by the Priestly class on Govern- 
ment — The political system of Morocco — The Ulemas' College at Fez, and 
their power in behalf of limited Government — Mohammedanism and Con- 
stitutional Liberty in general. 



BOOK II— THE EFFORT OF EUROPE 
I. Ancient Greece 35 

The Greeks and the state as a human institution — The political system of 
Ancient Greece — The Dorian invasion — The social basis of the Spartan state 
— The Lycurgan Constitution — The College of Ephors — The powers of the 
Ephors in limiting autocracy— The downfall of the Ephors — The decay of 
Sparta — ^The Ionian invasion — The Athenian state — Change from King to 
Archons — The Draconian Constitution and the Court of the Ephetae — Popu- 
lar discontent and the appearance of Cylon — The Solonian Constitution 
and institutions — The Areopagus and its Judicial power — The advent of 
Pisistratus and demagogy — The tyranny of Hippias — CUsthenes and genuine 
democracy — The War with Persia and its results on the Constitution of 
Athens and the relation of Athens to her Allies — Pericles and Cassaristic de- 
mocracy — Overthrow of the Areopagus by Pericles— The decay of Athens — 
Defects in the constitutional relations of the Assembly to the Areopagus — The 
Greek states as despotisms unable to form a National Union — ^The rule of 
Macedon over Greece. 



II. The Effort of Ancient Rome 49 

The Constitution of ancient Rome. The King, the Senate and the 
Comitia Curiata — The reforms of Servius Tullius and the Comitia Centuriata 
— The relation of the King's Government to the Comitise — Overthrow of the 
Kingship and establishment of the Patrician Republic — The Lex Valeria — 
The secession of the Plebeians and the Lex Sacrata — The Tribunes, the Trib- 
uneship and the Comitia Tributa — The Lex Publilia — The First Decem- 
virate and the Twelve Tables — The Government, the Tribunes, and Civil 
Liberty — The extension of the city and Plebeian discontent— The participa- 
tion of the Comitia Tributa in legislation^The Lex Licinia and the eligibility 
of the Plebeians to the Consulship — Full legislative power of the Comitia 
Tributa at last conceded — Rome becoming an Empire — The gradual transfor- 
mation of the Roman Constitution under the influence of the Conquests — 
Rule of the Senate — The decay of Roman character— The ruin of agriculture 
and the growth of the urban proletariat — Attempted reforms by the Gracchi 
— The Consulship of Marius and the Tribuneship of Drusus — The Dictator- 
ship of Sulla and the downfall of the Republican Constitution — Pompey and 
his attempt to restore the Constitution — Pompey, Crassus, and Cssar — The 
plans and movements of Caesar, and the Government established by him — 



CONTENTS ix 



The assassination of Csesar and the anarchy following — Octavian and his 
Constitution — Augustus Princeps — The new Imperial system — Diocletian 
and the real Roman Imperium — The downfall of Constitutional Liberty in 
the Roman system — ^The appearance of Christianity in Rome — The Chris- 
tians and the Imperial Government— The spread of Christianity; its social 
and political principles — ^The Christian communities developing into the 
Christian Church — The persecutions of the Christians — Trajan — Marcus 
AureUus — Septimius Severus — Decius — The Church organization and 
power after 250 A. D. — Diocletian and the iinal persecutions — The Edicts of 
Toleration and the establishment of the Christian Church as the State 
Church of the Empire — ^The new position of the Church as a pubUc corpora- 
tion, and its powers of intercession and asylum in behalf of Individual Liberty 
— Individual Liberty under the protection of the Church — ^The power of the 
Church over the Imperial Government. 



III. Germania 73 

Germania, the original home of freedom, as portrayed by Tacitus — The 
system of landownership — Social distinctions — ^The common Freemen — ^The 
German Nobles — Dependants — ^The Slaves — The Assemblies — The Tribal 
Assembly and its powers — The Village Assembly — The Hundred Assembly 
— ^The Princes and their Gefolge or retainers — The functions and duties of 
the Princes — The Kings and the Princes of tribes — The idea of Royalty — 
The form of the German state — The guarantee of Civil Liberty in the ancient 
German state — Civil Liberty not distinguished from participation in political 
power in the ancient German system. 



IV. The Prankish Kingdom 82 

The development of the Ducal office and power — Arminius — The Royal 
office and power — Clojo and his SaUans — Merovius, Childeric, Clovis — 
Clovis and Syagrius — Syagrius and the Emperor — The rebellion of Syagrius 
and the loyalty of Clovis — Clovis and the Church in Gaul — Clovis defender 
of the orthodox Church in Gaul and Roman Proconsul — Establishment of 
the Kingly office and tenure — Liberty in the early Prankish Kingdom — ^The 
Church as the defender of Liberty in the early Prankish Kingdom — Liberty 
and Aristocracy — ^The land system of the Merovingians — ^The struggle be- 
tween the Crown and the Lords over the land question — The origin of the 
system of Commendation — ^The Counts as Manorial Lords — Pippin of 
Landen and the Austrasian Landlords — The charter of Liberties given by 
Chlotaire II, in 615 — Individual Liberty and Aristocratic Government — ^The 
Vice-royalty of Dagobert in Austrasia — Dagobert in Neustria — The death 
of Dagobert and the regime of the Rois Faineants — Individual Liberty and 
Aristocratic Government — Conquest of Neustria by Austrasia; and the rule 
of Pippin over the entire Prankish Kingdom. 



CONTENTS 



V. The Carolingian Empire 94 

The Holy Roman Empire of the German Nation — The conditions con- 
spiring for the creation of the Carolingian Empire — Growth of the Manorial 
system — Invasion of the Moslems and the Saxons — The Lombards in Italy 
and the growth of the Roman Patriarchate — The policy of the Carolings — 
The Church and the Army — The Carolings and the Roman Bishop — ^The 
reclamation of state domain from the Church — The Papacy of Rome; its 
work for Civilization — The Holy Roman Empire and its great work for Civil- 
ization — The accession of the Carolings — The fate of Grimoald — The Caro- 
lings made Kings by divine calling — The Carolings and the Roman Patri- 
ciate — The Bishop of Rome and the States of the Church — Charlemagne and 
the European Empire — ^The conference between King and Roman Bishop at 
Paderborn — The coronation of Charles as Emperor and Augustus — The 
nature of the new creation — Sovereignty and Government — The CaroUngian 
Administration; the OfEcials, Dukes, Counts, Margraves, Vicars — The Cities 
and Manorial estates — The Bishop as Count in a City — The Manorial juris- 
diction — The Carolingian Assemblies — The growth of the Feudal System by 
Commendation — The Emperor the real lawgiver — The Church and Individ- 
ual Liberty in the Carolingian system — Church powers or Bishops' powers 
in Government — The Bishops as Manorial Lords — The Missi Dominici — 
The powers of the Missi — The Missi and Individual Immunity from arbi- 
trary Government. 

VI. The Anglo-Saxon State 113 

The Anglo-Saxons in England — The political customs brought by them to 
England — No original Church restraint on secular Government — The Hep- 
tarchy — Internal changes under the Heptarchy — The development of Royal 
Government — The powers of the King and the Earldormen — The Shire-moot 
and Individual Liberty — ^The King's Theyns — The Witenagemots — The 
AssembUes becoming part of the Government — The conversion of the Anglo- 
Saxon Kingdoms to Christianity — Gregory the Great and Augustine — The 
conversion of Kent — The Roman Church and its functions in England — ■ 
The Church and the English nation — The Church and the Royal Power — The 
Church broader than the State in Anglo-Saxon England — ^The Church be- 
coming Government — Absolutism in Anglo-Saxon England — King Alfred 
and his system of Government and Liberty — ^The Fideles — The Danish in- 
vasion and rule — Beginning of the Feudal System in England — The adminis- 
trative system of the Danes — The Danes and the demoralization of Royalty. 

VII. The Middle Ages 126 

Definition of the Middle Ages — The Feudal System and the Roman Impe- 
rial system — The early allodial land tenure — The original composition of a 
Feudal estate — The Royal Officials and the Feudal System — The Counts — 
The Dukes and Margraves — The King as paramount Feudal Lord— Manorial 
jurisdiction — The Feudal System first organized the Country as distinguished 



CONTENTS XI 



from the City — ^The weakening of the Monarchy by the Feudal System — The 
reign of Louis the Pious over the Prankish Empire — ^The overthrow of the 
Imperial system and the compact of Mersen — The extinction of the Caroling 
House and the triumph of the Feudatories — ^The new Kings of France, Ger- 
many, and Italy chosen by the Feudatories — Nature of the New Monarchy — 
The King as Feudal Lord — Duke Wilham and the Feudal System in England 
— The Kingship of William of Normandy in England — The Feudal System 
and the Papacy — The Papacy historically necessary — Charlemagne and the 
Bishop of Rome — ^The Papacy as ecclesiastical Imperium with a states'-rights 
secular poUcy — The Church the truer representative of the People — Con- 
flict between Church and State — The divorce case of Lothair II — ^The 
Papal power — The Holy Roman Empire of the German Nation — Simony — 
Henry III, Hildebrand — Election of the Pope by the Cardinals — The re- 
forms of Hildebrand — Vicissitudes of Kingship, Imperium, and Papacy — The 
Crusades and Church reform — The Concordat of Worms — The Concordat 
and historical progress — Barbarossa and the Papacy — Alexander III — Final 
triumph of the Pope over the Emperor, Henry VI and Innocent IV — The 
Papacy and the Church in France — Kings PhiUp Augustus and Louis IX and 
the Jurists — The ParUament of Paris — The Roman law and the claims of 
the Papacy — The Church in England and the Norman King — The Church 
triumphing over the King in England — The Constitutions of Clarendon — 
Becket and the King — The Papacy fully estabUshed in England — The Eng- 
lish Parliament — ^The Classes of the Middle Ages and the people — The psy- 
chologic character of the Middle Ages — The faults in the Logic of the Middle 
Ages — ^The Feudal System in final form — Failure of the Feudal System to 
provide any means for the protection of Individual Liberty — The Church no 
sufficient defender of Civil Liberty — The Church as Government more des- 
potic than the Secular Power — ^The despotism of the Church, however, re- 
ligious and, when religion was not concerned, benevolent. 

VIII. The Revival of the Monarchy 157 

The development of the Free Cities — Royal incorporation of Towns — The 
Lawyers and the Monarchy — The King and the Free City — Rise of the idea 
of Sovereign and Subject — ^The approach of the King and the Cities to each 
other — ^The Cities and the National Monarchy in Spain. The Holy Herman- 
dad — The City and the development of public opinion — The Renaissance 
and the New Monarchy — The Renaissance in its narrower sense — The Re- 
naissance in Italy, Francesco Petrarcha — Boccaccio and the revival of Greek 
learning — Filefo, Poggio, Guarino, Aurispa, Reuchlin, Erasmus, Lope de 
Vega, and others — Printing and the famous Aldine, Froben, and Etiennes 
presses — ^The forerunners of the Renaissance, Roger Bacon, Albertus Mag- 
nus, Bonaventura, Thomas Aquinas, Dante, Abelard — ^The movement first 
literary, then social and political — The tyrannies of the Visconti, the Sforzas, 
the Foscari, the De Medici, and the Aragonesi— The antidotes of the Renais- 
sance — The Reformation from four fundamental view-points — The morals 
and discipline of the Clergy— The Councils of Pisa, Constance, and Bale and 



xii CONTENTS 



the discipline of the Clergy — Some improvement in the conduct of the Clergy 
— The demands of the Reformation in regard to the morals of the Clergy — 
The demands of the Reformation in regard to Theological Doctrines — The 
Reformation and Government, civil and ecclesiastical — The divine origin of 
the Papacy and its temporal power disputed — The excesses of the Reforma- 
tion and the Jesuit Reaction — The National Church idea — The growing 
necessity of a revival of Royal power — The large increase of the Royal 
power in the communities renouncing entirely the Pope and the Roman 
Curia — The Reformation in England — The question of Royal divorce — • 
The King as the Head of the Church — The Reformation and the Royal 
power in the Scandinavian states, Denmark, the Netherlands, the German 
principalities, and Switzerland — The Thirty Years' War and the Reformation 
— The preparation for the New Monarchies — The Absolute Monarchy in 
Spain — The league of the Cities of Castile — The King and the Orders of 
Knighthood — The nationalizing of the Church in Spain — The Inquisition — 
The Spanish Fueros — The Justiciar — The destruction of the Justiciar and 
the completion of Absolutism — The Absolute Monarchy in France — Saint 
Louis, the lawyer-King — -The Judicial Parliaments — The Royal placet — 
— Philip le Bel — The registration of law by the Parliament of Paris — Con- 
flict between PhiHp le Bel and Pope Boniface VIII — The Etats-Gdn6raux 
of X302 — The Bull "Unam Sanctam" — The Papal residence transferred from 
Rome to Avignon — The destruction of the Templars — -The death of PhiUp 
le Bel and the accession of the Valois — The hundred years' war — Creation 
of the French standing Army — The Pragmatic Sanction of Bourges — Louis 
XI, his policy — The completion of Absolutism in France — Development of 
Absolutism in England — The Wars of the Roses — The triumph of Lancaster, 
Henry VII — The subordination of Parliament to the Royal power — The 
Tudor Absolutism — Wolsey's policy and fate — Thomas Cromwell and the 
Tudor Despotism — Cromwell's management of ParUament — The Act of 
Supremacy — Development of the Monarchy in Germany and Italy — A 
German or Italian national Monarchy then impossible — The Prussian 
Monarchy — The Monarchy of Frederick the Great — Nature of Prussian 
Absolutism — The partial success of Absolutism in South Germany and Aus- 
tria — The Duchy of Milan and the Visconti and Sforzas— Venice, the suc- 
cessful aristocratic Republic — The Florentine Republic and the Duchy of 
Tuscany — The Albizzi and the Medici— The politics of the Medici and their 
success — The Absolute Monarchy of the Aragonesi in Naples — Absolutism in 
the States of the Church — The Absolute Monarchy and the House of Vasa 
in Sweden — The Absolute Monarchy in Norway-Denmark — Absolutism in 
Russia — Peter the Great and the Jure-Divino Military Monarchy — Failure 
of the New Monarchies to solve the problem of the reconciliation of Govern- 
ment and Liberty 

IX. The Revolutions 201 

Opposition in principle of the Renaissance and the Reformation to the 
Absolute Monarchy— Difierence between the opposition of the Renaissance 



CONTENTS xiii 

PAGE 

and the Reformation in its results — The Revolution in England and the 
policy of James I — The Parliament of 1 6 14 and the appearance of Eliot, Pym, 
and Wentworth— Quarrel between the King and the Judges — Private char- 
acter of James — The Parliament of 162 1 and the King — The Spanish contro- 
versy, the death of the King and the accession of Charles I — Beginning of the 
struggle between Charles and the ParHament— Eliot and Buckingham — 
— Benevolences, forced loans, and the Rochelle disaster — ^The Parliament 
of 1628 and the Petition of Right — The Assassination of Buckingham — The 
Dissolution of the Parliament of 1620 — The plan of Wentworth and Laud 
for Absolute Government — The independence of the Royal Exchequer — 
Wentworth and his plans for Absolutism in Ireland — Laud and the ecclesi- 
astical supremacy of the Crown — Episcopal Government repudiated in Scot- 
land and arbitrary taxation opposed by Hampden — ^The King upheld by the 
Courts but resisted by the Nation — The Scotch Covenant, the Short Parlia- 
ment and its dissolution — The Long Parliament of 1640 and the advent of 
Pym — Pym's theory of the relation of the public powers — Acts of the Long 
Parliament undoing Absolutism — The King and the Scots — The fall of 
Strafford and the condition of Ireland — The attempt of the Commons to 
expel the Bishops from the House of Lords — Civil War — Edgehill — The 
death of Pym — Marston Moor and the advent of Oliver Cromwell — Crom- 
well's poUcy — Naseby — Cromwell and the Parliament, and the Army and 
the Parhament — The King and the Army leaders — The movements of the 
King — Wigan and Warrington — The Council of Officers of the Army and 
its demand — ^The Commons' declaration of Sovereignty — Execution of the 
King — ^The Army, the Council of Officers and the Commons — The forced 
dissolution of the Rimip Parliament — Praise-God-Barebones Parliament — 
The Instrument of Government — The Parliament of 1654 — CromweU and 
the Parliament — Dissolution in January, 1655 — The Tyranny of Cromwell — 
The Parliament of 1657 — The Protector — Restoration of the House of Lords 
— Death of Cromwell and the succession of his son Richard — Richard Crom- 
well and the Parliament and the Council of Army Officers — The restoration 
of the King and the ancient Constitution — The Convention and its work — 
The election, 1661, and the triumph of the Cavaliers — Restoration of the 
State Church — The King and the Act of Uniformity — ^The Established 
Church, the King and religious toleration — The policy of the King for the 
restoration of Roman Cathohcism — Oates and Bedloe — ^The Bill for the ex- 
clusion of James — The accession of James II to the throne — The reactionary 
movements of the King and the revolt of the Parhament — The call of Wil- 
liam of Orange and his accession to the throne — The Constitutional Conven- 
tion of 1689— The Declaration of Rights— The Bill of Rights— The Sover- 
eignty of Parliament the grand result of the Revolution — The Kings' Min- 
isters and the Parliament — The Earl of Sunderland and the creation of the 
Ministry — The culmination of Absolutism in France by the aboUtion of the 
Parliament of Paris in 1771 — Recall of the Parliament by Louis XVI— The 
disordered finances and the proposed reforms of Turgot and Necker — The 
results of France's participation in the War of the American Revolution — 
Calonne and the Assembly of the Notables — The Notables, the Parliament 



xiv CONTENTS 

PAGE 

of Paris, and the Etats-G6n6raux — The summoning of the Etats-G6n6raux 
— Its Constitution — The half-way measures of the King in regard to the 
question of the Constitution and procedure of this body — The Third Estate 
declares itself the representative of the Nation — ConsoUdation of the Estates 
into the National Assembly — This body assumes Constituent power, the 
Sovereignty — Forms the Constitution, with a Bill of Rights but no means of 
maintaining it against the powers of the Legislature — Radical course of the 
Revolution — The flight, capture, and imprisonment of the King — The com- 
pletion of the Constitution of 1791 — The revised Constitution still provided 
no means for maintaining Individual Liberty — The radical character of the 
first Legislature under the new Constitution — The imprisonment of the 
Royal Family and the Convent — The Tyranny of Danton, Robespierre, and 
Marat — The Constitution of 1795 — The Consulate of Bonaparte — The Im- 
perium of Bonaparte and Individual Liberty — The restoration of the Bour- 
bons and Individual Liberty — The Revolution of 1830 — The Constitution 
of 1830 and Individual Liberty — The Revolution of 1848 — The Constitution 
of 1848 and Individual Liberty — The Constitution of 1851 and Individual 
Liberty — The overthrow of the Second Empire — The Revolution in the 
Netherlands, the Dutch Republic, and Switzerland — The Revolution and the 
Napoleonic system in Italy — Equality but not Liberty — The Confederation 
of the Rhine — Bonaparte in Spain and Portugal — The Restoration in Europe 
generally — The reappearance of the Revolution in 1820, 1830, and 1848, 
everywhere — The Holy Alliance— The results of the Revolution — Consti- 
tutional progress from 1820 to 1848 throughout Europe— The reaction of 
1850 — The Crimean War and its results regarding the transformation of the 
European states — The Spanish Revolution of 1867 — The latest Revolution 
in Portugal and the establishment of the Republic — The Franco-Prussian 
War of 1870 and the Constitution of the German Empire — The Russo-Turk- 
ish War of 1878 and the independence of the Balkan states — The constitu- 
tionalizing of Russia — Separation of Norway and Sweden — The poUtical 
principles evolved by the course of the Revolution — The significance of the 
Nation poUtically — The failure of the Revolution in Europe to solve the 
problem of the reconciliation of Government and Liberty — Differences be- 
tween Teuton and Latin in the philosophy of the Revolution. 



X. The Present Constitutions of the European 

States 253 

The European states and Constitutions of the present day — The question 
of the Sovereign power in these modern Constitutions— The failure of nine 
of the twenty-one Constitutions to fulfil this primal condition in their origin 
— The organization of the Amending or Revising Sovereignty — England, 
Hungary, Italy, Spain — Only four of the European states, viz: Bulgaria, 
France, Greece, and Switzerland, contain the independent organization of the 
power for Constitutional revision—Bulgaria — Greece — France — Switzerland 
— The Constitution of Switzerland, the only one offering a complete solution 



CONTENTS XV 

PAGE 

to the question of an independent organization of the sovereign power — The 
Bill of Rights in the present Constitutions of the European states — The 
failure of certain states in this respect, England, Hungary — The German 
Empire and Austria — The content of Individual Immunity or the Civil 
Right — ^The Immunity in regard to Person — The Immunity in regard to 
Property — ^The Immunity in regard to Thought and Belief — The Bills of 
Rights in the Constitutions of Bulgaria, Belgium, Denmark, Greece, Italy, 
Luxemburg, Montenegro, Netherlands, Norway, Portugal, Roumania, Russia, 
Switzerland, Servia, Sweden and Spain — the Right of Assembly — Also the 
Right of Petition — Also the Right of Association, except in that of Italy — Also 
the InviolabiUty of the Home— Further rights of a Civil nature — The Con- 
stitutional guarantees of Individual Liberty — The Legislature the only guar- 
antee in the modern Constitutions of Europe of Individual Liberty — The 
legislative power of Impeachment of OfEcials in the European states — The 
Belgian principle— The Bulgarian law — ^The Danish law — The German law — ■ 
The French law — The Greek law — ^The Italian law— Luxemburg — Monte- 
negro — Norway — Austro-Hungary — Portugal — Roumania — Russia — Servia 
— Sweden — Spain— Switzerland — The practise in England and Hungary — 
The original position of the Legislature — The original structure of the Legis- 
lature as a guarantor of Liberty — The Bicameral system of the Legislature — 
Exceptions to it few and insignificant — Parity of Power in the two Chambers 
— Changes in this principle— Imparity of Power and the Budget — ^The Army 
Bill — ^The general initiation of Law — The qualifications for the suffrage — 
Changes in the same — The European Constitutions generally follow the 
principle of making the Upper Chamber more conservative than the Lower — 
The variety of tenure in the members of the two Houses of the Legislature 
and also in the members of the Upper House — The British House of Lords — 
The Hungarian House of Magnates — The Austrian House of Lords — ^The 
Spanish House of Lords— The Upper Houses of the German Empire, Russia, 
and Denmark — The Upper Legislative Houses of Greece and Italy — ^The 
Senates of Belgium, France, Norway, Netherlands, Portugal, Roumania, 
Sweden, and Switzerland — The qualifications of eligibility to the member- 
ship of the Upper Chamber — Uninstructed representation — ^The structure 
of the Legislature as a guarantor of Civil Liberty — The course of develop- 
ment in Legislative EHgibiUty and Suffrage qualifications — ^The Legislature 
and the Political Society— The present Constitutions of the European states 
do not solve the problem of the reconciliation of Government and Liberty. 



BOOK III— THE EFFORT OF AMERICA 



I. The United States or North America .... 

The American states and the problem of Government with Liberty — The 
United States of North America — The difficulty of tracing the development 
of a Sovereignty— The English Crown and the North American Colonies— 



xvi CONTENTS 

The character of the Colonial Charters and Patents — The Colonies under 
British Law — Geographical and ethnical conditions in these Colonies — The 
growth of the Colonies and their approach to each other — The Committees 
of Correspondence — The Revolutionary party — The Colonial Governments 
and the Revolution — The Port Bill and Regulating Act of 1774 — The call of 
the General Congress — The First Continental Congress — The Nature of the 
First Continental Congress — The theory of the relation of the Colonies to 
the motherland as advanced by the Continental Congress — The Second 
Continental Congress — The Second Continental Congress as a sovereign 
body, and as the ordinary Legislature in a National Government — The 
Committee on the Constitution and its report — States' -rights developments 
betweenjuly, 1776, and November, 1777 — The Articles of Confederation and 
the problem of Government with Liberty — The experience under the Articles 
of Confederation — Resolution of the Confederate Congress of February 21, 
1787 — The assembly of the Constitutional Convention of 1787 — The two 
difficulties which confronted the Convention at the outset — The resolution 
of the Confederate Congress for putting the new Constitution into operation 
— The rejection of the Constitution by the State of Rhode Island — Its final 
adoption by all — The first ten amendments — The fulfilment of the first re- 
quirement for the solution of the problem of Government with Liberty by the 
new Constitution, both in its original construction and in its provision for 
subsequent development — ^The sovereignty still not completely commanding 
as organized in the United States Constitution — The content of the Civil 
Right in the Constitution of the United States — The original defect of the 
national Bill of Rights — The cure of this defect by the thirteenth and four- 
teenth amendments — ^The guarantees of Civil Liberty — The structure of the 
Government, first as Federal Government — The Elective character of the 
Government of the United States as a guarantee of Civil Liberty — The dis- 
tribution of Power as a defense of Individual Immunity — The check-and- 
balance system in proper form and real force — The independent Judiciary 
the most effective guarantee of Individual Immunity from the Absolutism of 
Government — ^The Constitutional provisions relative to the protection of In- 
dividual Liberty by the Judicial Power — The purpose of these provisions — 
The means of executing this purpose — The Constitutional Immunities of the 
Individual the supreme law of the land — The origin of the principle of the 
Judicial Protection of the Immunities of the Individual — The interpretation 
of the meaning of this system by contemporaneous reports — The cause of the 
doubts subsequently arising as to the purpose and meaning of the scheme — • 
The explanation of the system in the case of Marbury vs. Madison — The 
reasoning in Marbury vs. Madison sustained by express Constitutional pro- 
vision — The two things necessary to give the Judiciary the power to fulfil the 
duty of guarantor of the Immunity of the Individual — The New England 
movement of 1812-15 in regard to the ultimate interpretation of law in the 
poUtical system of the United States — The position of the Judicial power 
threatened in the contest between Georgia and the United States over the 
Indian question— The case of Worcester vs. Georgia — The Dred Scott Case — 
The decision in the Courts of the State of Missouri — The case in the Circuit 



CONTENTS xvii 



Court of the United States — The case in the Supreme Court of the United 
States — The decision and the obiter dictum of the Supreme Court of the 
United States — ^The position of the Court as supreme interpreter of the Con- 
stitution shaken by the obiter dictum in the Dred Scott Case — The Merry- 
man Case — The re-establishment of the Judicial power and supremacy after 
the Civil War in the Case of ex parte MilUgan — The period of Reconstruction 
and the Court — The case of Mississippi vs. Johnson — The case of Georgia 
vs. Stanton — The McCardle Case — The extension of the realm of Individual 
Immunity against governmental power by the thirteenth and fourteenth 
amendments — The distinction between Individual and Person in these 
amendments — The recent change of public opinion concerning Government 
and Liberty — The beginning of the change following the Spanish-American 
War of 1898. 



11. The Present Constitutions or the States of 

South America 327 

The Constitutions of the South American states follow the model of the 
French Revolution — ^The occupation of Spain and Portugal by Napoleon the 
occasion of the independence of their American colonies — The sovereignty 
in the South American states — Argentina and Paraguay — Bolivia and Co- 
lombia — Brazil — Chili — Ecuador and Peru — Uruguay — Venezuela — The Ar- 
gentine Union, the only South American state which makes the distinction 
between Sovereignty and Government — The Bill of Rights or Immunities in 
the South American Constitutions — In respect to the contents of the Bill of 
Rights the South American Constitutions fairly complete — The guarantees 
of Civil Liberty in the South American Constitutions — The structure of the 
Governments created by them — Argentine, Brazil, and Venezuela Federal 
systems — The larger legislative power of the National Legislatures of these 
states than that exercised by the Congress of the United States — The dis- 
tribution of governmental powers in the South American states — A greater 
tendency to Parliamentarism than in the Government of the United States — 
The check-and-balance system in Brazil and Uruguay — The Presidential 
veto in the South American states — The bicameral system in the Legisla- 
tures of the South American states — The length of legislative terms — Parity 
of power only in the legislative Houses of Ecuador and Peru — The novel 
means of the South American legislatures, whereby one House may over- 
come the opposition of the other — The election methods of the South Ameri- 
can states — Bolivia, Brazil, Ecuador, and Peru — Argentina — Chili and 
Paraguay — Colombia — Uruguay — ^Venezuela — The position of the Judiciary 
in the South American states — Argentina — Brazil, Colombia — Peru — 
Uruguay — Venezuela — Bolivia, Chili, Ecuador, Paraguay — The advance 
of six of the South American states over the European states in the Judicial 
guarantee of Civil Liberty — The force to work the Constitutions rather than 
the character of the Constitutions is what is lacking — The Argentine Re- 
public the light of South America. 



xviii CONTENTS 

PAGE 

III. Mexico and Central America 340 

The Mexican Constitution of 1857 — The sovereignty in the Mexican 
Constitution — The Bill of Rights of the Mexican Constitution — The guaran- 
tees of Civil Liberty in the Mexican Constitution — Federal system — -Separa- 
tion of powers — Election of Officials and Members — Impeachment— Presi- 
dential initiative and veto — Parity of powers in the legislative Chambers — 
The Judicial guarantee of Individual Liberty in the Mexican Constitution — 
— The cause of so much misgovernment in Mexico — The character of the 
Mexican people or population — The Central American states and a Central 
American union — The question of the Sovereignty in the Constitutions of the 
Central American states— The Immunities of the Individual in the Central 
American states — The guarantees of Civil Liberty in the Central American 
Constitutions — The separation of powers and the relation of the Legislature 
to the Executive — The Executive— The structure and powers of the Legis- 
lature in the Central American states — The Judicial guarantee of Civil Lib- 
erty in the Central American states — The existence of such guarantee only 
in the states of Nicaragua and Panama — Character of the inhabitants of 
these states. 

IV. The States of the West Indian Archipelago . 349 

The states of Cuba, Hayti, and Santo Domingo and their Constitutions — 
The question of Sovereignty in the Cuban Constitution — The Bill of Rights 
in the Cuban Constitution — The Construction of the Government in the 
Cuban Constitution — The President and his powers — The Legislature and 
its powers — The Judiciary as a guarantor of Individual Liberty in the Cuban 
Constitution — The protectorate of the United States of North America over 
Cuba — The Constitution of Hayti and its similarity to that of the French Re- 
public — Does not solve the question of Sovereignty — The Bill of Rights in 
the Haytian instrument — The structure of the Haytian Government — The 
President and his Secretaries of State — The Legislature — The uncertainty of 
the Judicial defense of Civil Liberty — The Santo Domingo instrument — ^The 
Bill of Rights — The means of its enforcement — The Construction of the 
Government — The President and his Secretaries of State; his powers and re- 
sponsibihties — The Legislature — The Judicial guarantee of Civil Liberty 
in the Dominican Constitution — Comparison of the American Constitutions 
with the European — Characteristics of the inhabitants of the states of South 
and Central America, of Mexico and the West Indian states — Brazil — Bolivia 
— Colombia — Ecuador — Paraguay — Peru — Venezuela — The Central Amer- 
can states — Mexico — Cuba — These populations chiefly Indian and European 
Constitutions a misfit for them. 

V. The New United States or North America . . 358 

Government and Individual Liberty in the United States of North Amer- 
ica between i868 and 1898 — The turn of 1898 — War and Expansion — Terri- 



CONTENTS xix 



tonal Government under the Constitution before i8g8 — The Dred Scott Case 
and the government of the Territories — The annexation of the Hawaiian 
Islands and the conquest of the PhiUppines and Porto Rico as affecting 
Individual Liberty — The Customs Act of Congress and the Act in reference 
to Judicial procedure for the annexed territories — ^The decisions of the Su- 
preme Court upholding these Acts — The principle of these decisions — The 
embarrassment of the question — The effect of urdimited power in one part of 
a Constitution over the other parts — The differences of opinion among the 
Justices — The spread of the taint of Absolutism — The growth of Corporations 
in the United States after i8go — The nature of a private Corporation — The 
exercise of increasing Government control over Corporations — The Excise on 
Corporations — The Excise and the Income Tax — President's veto on the 
Excise on Individuals — Suggestion of amending the Constitution in reference 
to an Income Tax — The sixteenth amendment to the Constitution of the 
United States — Congress has now unlimited power to take the property of 
the Individual through an Income Tax — The nature of genuine Constitu- 
tional Government — Representation and Limitation — The Income Tax of 
1913 levied by Congress under the sixteenth amendment — Arbitrary and 
discriminatory character of the Act — ^The Judicial power and the Act — 
The order of Authority — ^The new Political system of the United States — 
The characteristics of the people of the United States — The spectre of Caesar 
— ^The readjustment of the line between Government and Liberty in the 
system of the United States since 1898 — Initiative, Referendum, and Recall 
■ — ^The distinction between the people as Sovereign and as Government — 
"The Mob of the Forum" — ^The Referendum demoralizing — -The Recall and 
weak administration of Government — The Judges and the Recall — ^The re- 
call of Judicial decisions — ^These nostrums no cure for the disease of govern- 
mental Absolutism — Retrogression in the last twenty years — The path of 
true progress — Government and social uplift — ^The expansion of Govern- 
ment and the deterioration of National Character — The effect of the growth 
of Government in a Republic — ^The dangers of a Republic with unlimited 
Government. 

Index 385 



BOOK I 

ASIA AND AFRICA 

CHAPTER I 

THE EFFORT OF ASIA TO SOLVE THIS PROBLEM 

It has not escaped the observation of deep thinkers that 
the genius of Asia has been rehgious, rather than poHtical, 
while that of Europe has been predominantly political. 
Asia has originated, with the exception perhaps of Druid- 
ism, all the great religions of the world; while Europe and 
her offspring, the Americas, have originated all the great 
states of the world. The result of this psychological char- 
acter has been that almost all the Asiatic states must be 
classed as theocracies or as despotisms based upon the 
theocratic principle. Now, such states sacrifice Liberty to 
Government, and do not even recognize with any clear- 
ness the existence of the problem of the reconciHation of 
Government with Liberty. The study of the Asiatic states 
cannot, therefore, be of much service in elucidating the 
subject which we have set before ourselves in this work. 
Nevertheless we can, with careful study, perceive, in some 
of the Asiatic states, a certain appreciation of this prob- 
lem, and a certain effort to meet it. 

The Continent of Asia contains some seventeen and one- 
half milHon square miles of territory inhabited by about 
one thousand millions of men. One-half of this territory 
and one-third of this population, speaking roughly^ are 



2 GOVERNMENT AND LIBERTY 

subject to two great European states, viz.: Great Britain 
and Russia. All of this we leave, of course, out of con- 
sideration in the inquiry regarding the contribution of Asia 
to the solution of our problem. On the other half of its 
territory and among the other two-thirds of its population, 
ten sovereign and independent states exist to-day, viz.: 
Afghanistan, Arabia, Bhotan, China, Japan, Nepal, Oman, 
Persia, Siam, and Turkey. Of these ten, only four have 
placed any limitations upon despotic Government deserv- 
ing mention, that is, only four have contributed anything 
toward the solution of our problem. These are China, 
Japan, Persia, and Turkey. 

First and foremost among these four is China, the oldest 
of them all, the largest and the one which has held itself 
freest from foreign influence down to the most modern 
period of liistory. The basis of China's most ancient po- 
Utical system was a code of morals rather than, as in the 
case of most Asiatic states, a rehgion. That made a very 
wide difference between China and, we will say, India 
from the very start. That estabUshed the state upon a 
human, instead of a divine, basis and opened the way for 
the principle of a limitation upon governmental power by 
human reason and will. 

The poHtical history of China begins, so far as we have 
any accurate knowledge of it, some twenty-three centuries 
before the Christian era. The Emperor Chun appears to 
have begun in this period the poHtical organization of that 
part of China which became the nucleus of the great Em- 
pire. For something more than a thousand years his suc- 
cessors carried forward his work, developing a more and 
more despotic power in the Emperor and the devolution of 
this power by hereditary right, and at the same time lay- 
ing the foundation for a feudal system by trusting the 



ASIA AND AFRICA 3 

administration of the provinces and districts of the Empire 
to officials, whose duty to the Emperor was the rendering 
of miHtary service and the payment of tribute, and whose 
powers in their provinces and districts were undefined and 
unHmited. Naturally, these officials also gradually de- 
veloped the principle of hereditary right in the Govern- 
ment of their respective provinces or districts; and the 
first clash between their claims and the Emperor's asser- 
tion of sole authority ended in the revolution of the eleventh 
century before the Christian era, when one of the great 
feudal lords. Won Wang, Prince of Tchu, overthrew the 
Emperor, the last of the second or Chang dynasty, and 
assumed the Imperial power himself. 

Under the Won Wang d3niasty China became in theory 
as well as fact a feudal system, and while it prospered and 
developed in many ways, it nevertheless followed the in- 
evitable course of the feudal system toward anarchy and 
disruption. It took China, however, some three hundred 
years to reach this extreme final result. It was about two 
hundred and fifty years before the Christian era that a 
great feudal Prince, Tsin-Chi-Hoang-Ti, not only deposed 
the Won Wang Imperial dynasty but overthrew the inde- 
pendence and power of the feudal Princes and restored the 
unity of the Empire under the sovereignty and sole govern- 
mental power of the Emperor. The danger to civilization 
now was that the restored Imperial power would become an 
unHmited despotism, and that instead of finding some solu- 
tion of the problem of reconciling Government with Liberty, 
Government would suppress and destroy Liberty. 

Already two hundred and fifty years before the over- 
throw of the feudal system and the restoration of the 
Imperial sovereignty, China's great sage, Confucius, had 
lived and taught. We have from his own hand but very 



4 GOVERNMENT AND LIBERTY 

little. He had a large number of disciples, and taught 
them carefully and assiduously, and he travelled from one 
to another of the feudal Princes endeavoring to impress 
upon them moderation in their Government and the love 
of their fellow men. His system as preserved and handed 
down by his disciples was a great code of morals rather 
than the principles of a rehgion, and so far as his teachings 
related to poHtics and Government, his purpose was to 
temper the despotic power of the Prince over his subjects 
by a benevolent disposition in the exercise of it. He was 
no revolutionist, and never taught violent resistance to 
estabhshed authority. He only sought to teach the Princes 
the principles and axioms of benevolence in Government 
and to induce them to apply them. Before the beginning 
of the Christian era, the Confucian system of morals, as 
handed down by his disciples, had become the universal 
cult in China and was moulding both the pubhc and pri- 
vate character of the Chinese. It was a system of a high 
order, not so far removed from the system of Christian 
morals as most men think, and its adoption as the rule of 
life gave China a civiUzation which has endured to the 
present day. 

The new dynasty of Tsin, which overthrew the feudal 
system and restored the Imperial sovereignty, was quick 
to observe the limitations upon the Imperial power con- 
tained in the ethical system of Confucius and endeavored 
to get rid of them by destro3dng the books which contained 
it, and putting to death the disciples who taught it. It 
may have been the offense thus given to the moral sense 
or moral rules, perhaps, of the people which brought that 
dynasty to its sudden downfall. Certain it is that the 
succeeding Imperial dynasty, the dynasty of Han, which 
came to the Imperial throne some two hundred years before 



ASIA AND AFRICA S 

the beginning of the Christian era, was most assiduous in 
gathering together and preserving the remnants of the an- 
cient books, in honoring the memory of the great sage and 
in re-establishing his cult. 

This dynasty sat upon the Imperial throne for more than 
four hundred years and under it the ethical principles of 
Confucius in respect to Government became the system of 
constitutional limitations upon despotic power. They be- 
came, not only the basis of the education of the members 
of the Imperial house and household, but also of all the 
chief officials. With all this, however, the way was still 
open for the arbitrariness of Government so long as the 
authoritative interpretation of the Confucian principles of 
benevolence in Government was ultimately and exclusively 
in the hands of the Emperor and his officials themselves. 
It was undoubtedly for the purpose of meeting and curing 
this constitutional weakness, made continually apparent in 
practise, that the famous Council of Censors was created, 
consisting of a President and forty to fifty members, en- 
tirely independent of the Government and forming no part 
thereof and charged with the duty of protecting the wel- 
fare of the people against all attempted arbitrariness in the 
administration, by reporting the same to the Emperor and 
even warning him against allowing it. In order to carry 
out this great purpose, the entire Empire was divided into 
districts and one or more Censors were assigned to duty 
in each, the duty of watching over all governmental pro- 
ceedings therein and reporting the same to the Council of 
Censors. In the language of modern political science we 
would say that this Council of Censors was a sort of su- 
preme court for the final interpretation of the principles of 
the Confucian limitations upon the despotic actions of the 
Government, in behalf of the so-called natural rights and 



6 GOVERNMENT AND LIBERTY 

welfare of the subjects. Its members were, of course, ap- 
pointed by the Emperor and, so far as the theory of the 
Imperial despotism was concerned, could be deposed by 
him, but the Confucian ethics had sunken so deeply into 
the consciousness of the Chinese that such action on his 
part, unless supported by general approval, would have 
endangered his throne. In fact, so far as we know, it was 
almost never undertaken. This was certainly an excellent 
political system for Asia, the mother of religions and the- 
ocracies, to have produced at all, and certainly so at that 
early age in the world's civilization. It enabled China to 
live and prosper under changes of Imperial dynasty down 
to the last decade of the last century of the Christian era 
with very little help or influence from the outside world; 
and it has prepared China to finally appropriate the Euro- 
pean political ideas, principles, and forms with far less 
difficulty and with much greater naturalness, more as 
evolution than as revolution, than any other Asiatic 
country. 

Unhappily, however, for China — perhaps unhappily — 
the power and influence of the Council of Censors and of 
the Confucian principles generally declined from century 
to century under the Manchu dynasty. The Manchus, 
and the Mongol conquerors before them, had no such ap- 
preciation of these doctrines as the genuine Chinese. Ap- 
parently, at least, the Imperial power became more and 
more despotic and found ways to emancipate itself from 
the limitations upon arbitrariness imposed by the Council 
of Censors and either to repudiate the Confucian principles 
altogether or to interpret them in its own way. At the 
same time, and in some measure at least in consequence 
of this vicious development, discontent grew and spread and 
the influence of the West became stronger and stronger. 



ASIA AND AFRICA 7 

By the end of the nineteenth century it could no longer 
be with impunity disregarded. 

In 1906 the Emperor sent out five commissioners to in- 
vestigate the constitutional law of the most important 
states of the world. In November of 1908 the Emperor 
by edict undertook to octroy, as the French say, a Consti- 
tution. It did Uttle more than ratify the existing state of 
affairs. At last, in 191 1, the revolution broke over the 
unhappy land. It was quick and almost bloodless. An 
irregularly chosen assembly formed a provisional Constitu- 
tion and elected a provisional President. 

In respect to the question we are discussing, viz.: the 
reconciliation of Government and Liberty, it is not a very 
happy outcome. It contains, it is true, a Bill of Rights, 
similar in principle to what is to be found in most Euro- 
pean Constitutions, in which religious liberty, the freedom 
of speech and of the press, freedom from illegal arrest, 
trial and condemnation, the freedom of peaceable assembly 
and petition to the Government, the freedom of movement 
and of occupation, the right to hold property, etc., are 
guaranteed. But no way is provided to enforce this guar- 
antee against the almighty Legislature, and its enforce- 
ment against the Executive is intrusted to what is termed 
the Court of Administrative Litigation, that is, to a tri- 
bunal not furnished with the power and independence of 
the ordinary tribunals for administering justice between 
individuals, and the Courts generally are the creatures of 
ordinary statute law. Hence, although the Judges hold 
apparently by a constitutional tenure, the Legislature may 
by ordinary statute provide for their punishment, dismissal, 
and retirement, and they have no power to interpret the 
Constitution against a legislative act of any kind or in rela- 
tion to any subject. The Judicial tribunals do not have 



8 GOVERNMENT AND LIBERTY 

even the power or influence against the Government in 
behalf of Individual Liberty once possessed by the Council 
of Censors. 

The framers of the present Chinese Constitution seem 
to have considered that the declared sovereignty of the 
people, a unicameral Legislature elected by the people and 
furnished with all legislative power and with the power 
to elect and depose the Executive and the power to create 
and control the Judiciary, were sufficient guarantees of 
Individual Liberty. For the benevolence of the Emperor, 
defined by the Confucian maxims as interpreted finally by 
the Council of Censors, they have substituted the benevo- 
lence of the almighty Legislature interpreted by its own 
conceit. In political theory they have sacrificed Liberty 
entirely to Government, and have destroyed the Uttle 
which old China had contributed to the solution of the 
problem of the reconcihation of Government and Liberty. 
How it will turn out practically remains to be seen. It is 
true that the present Constitution and Government are 
termed provisional, but an article in a recent number of 
the Atlantic Monthly by Ching Chun Wang, pleading for the 
recognition of the Chinese RepubHc, declares that not too 
much stress should be laid upon the word provisional and 
indicates that the provisional organization is to be the 
permanent and regular one; and the tendency of the 
Asiatic mind to despotism in Government inclines us to 
believe that such will be the case, but it will be the despot- 
ism of the Executive rather than the Legislature. 

In reviewing the history and present Constitution of 
Japan we reach, practically, the same result. Somewhere 
about two hundred and fifty years before the beginning 
of the Christian era a band of mihtary adventurers from 



ASIA AND AFRICA 9 

China or Corea is said to have crossed over to the south- 
west corner of the Island of Japan and to have subjected 
the aborigines to their rule in the southwestern half of the 
island or to have driven them backward toward the north- 
east. They established themselves in the district around 
the present city of Kioto and, under the lead of their Chief, 
the Mikado, developed the earliest poUtical system of 
Japan known to us, and gradually extended its sway over 
the entire island. As the military condition continued for 
many years after the invasion, so the military organiza- 
tion became substantially the civil organization; that is, 
the Mikado, the military Chieftain, was regarded as the 
source of all governmental power and authority and exe- 
cuted the functions of a civil nature, like those of a mili- 
tary nature, by his own appointed agents, subject at all 
times to his will and pleasure. He appointed from among 
his followers the Governors of provinces and districts, held 
them responsible to himself, and supervised the conduct 
of affairs. In European history the invasion and conquest 
of England by the Duke of Normandy and the establish- 
ment of his Government over the same was a movement 
of a similar nature to what happened more than a thou- 
sand years earlier in Japan. 

For about eight hundred years this absolute, centralized, 
hereditary Government of the Mikado continued in active 
force, when the Governors of the provinces and districts 
of the Empire, the Daimaos, entered into a sort of con- 
spiracy to secure greater independence against the Im- 
perial power. The means they employed were those of 
craft rather than of force. Somewhere about the sixth or 
seventh century of the Christian era the religion of the 
Hindoo Siddhartha Gautama, the Buddha, made its way 
into Japan and displaced largely the ancient religion of 



lo GOVERNMENT AND LIBERTY 

the people, Shintoism, the worship of Ancestors. The phil- 
osophical and ethical side of the Buddha's teachings do 
not seem to have been much regarded by the Japanese. 
They seem to have been almost entirely attracted by the 
Buddha's rehgious idea of renunciation of the world and 
absorption in Nirvana. The house of the Mikado became 
affected by it and the crafty palace officials under the in- 
fluence of the Daimaos succeeded in inducing the Mikados 
to retire from the active work of Government, lead the Ufe 
of the ascetics, and leave the administration of affairs to 
the Daimaos, each in his own district. 

The decentralization thus introduced developed rapidly 
and was gradually leading the Empire to anarchy, when, 
in 1 192, the powerful Daimao Minamoto Yoritomo suc- 
ceeded in having himself appointed Majordomo, Shogun, 
by the existing Mikado and set out upon the poHcy of 
building up his own independent rule over the entire Em- 
pire. The system which he introduced was what was called 
in Europe about the same period the feudal system. Yori- 
tomo gave to the Governors of the provinces and districts, 
the Daimaos, these provinces and districts as fiefs of the 
Crown; that is, he assumed to make the Daimaos and 
their hereditary descendants Lords of the soil of these 
provinces and districts and, as incident of such ownership. 
Governors over the vassals and subjects inhabiting them, 
reserving to himself the overlordship of the whole territory 
of the Empire and requiring from each Daimao military 
service and aides. His idea seems to have been, through 
this generosity to the Daimaos, to win tiiem to his plan 
for displacing the Mikado. The result seems to have been 
that, while they cared little whether the Mikado or the 
Shogun, as Yoritomo and his descendants were called, held 
the nominal overlordship over them, they followed the old 



ASIA AND AFRICA ii 

decentraKzing course with the purpose of estabKshing an 
independent state, each in his own province or district. 
By the beginning of the seventeenth century it had about 
come to that, when the capable, crafty, and energetic 
Daimao Tokugawa leyas, playing the role of a Charles 
Martel or, better, of a Louis XI, seized the Shogun power, 
deposed the Daimaos who would not subject themselves to 
him, and ruled the whole Empire either through his own 
appointed agents or through those Daimaos who would 
obey and execute his will. 

During the Shogunate of the Tokugawas, which lasted 
from 1603 to 1868, the Mikado with the officials of his 
court and state, while nominally the Sovereign, remained 
in monkish retirement, while the Shogun, though nomi- 
ally the agent and appointee of the Mikado, exercised all 
the powers of the Government according to his own will 
and pleasure. 

In order to maintain this deception the Shoguns kept 
the people in densest ignorance. No education internally 
was encouraged and no intercourse with the outside world 
was permitted. A sinister and hopeless despotism was 
fastening itself, apparently finally, upon the unhappy land. 
In the middle of the nineteenth century, however, events 
began to shape themselves more favorably. In the first 
place, the ability and character of the Shoguns were on 
the decline. Then the crop failures brought, especially in 
the absence of a monetary system, great embarrassment to 
the treasury of the Shogun, which caused the desertion of 
many of his mercenaries. Then the forcing open of the 
ports of Japan by Commodore Perry's expedition, and 
similar action on the part of other Powers, were great fac- 
tors, and finally the renaissance of Shintoism, the worship 
of Ancestors, closely connected with which was the duty 



12 GOVERNMENT AND LIBERTY 

of loyalty to the Mikado, was in itself almost a revolution. 
All these things discredited profoundly the Shogunate in 
the minds of the people and led to the movement for re- 
storing the Mikado and expelling the foreigner. 

In 1868 the last Shogun returned his powers to the 
Mikado, Mutsuito, and the active Government of the 
Mikado was, after nearly seven hundred years of priestly 
retirement, restored. The movement which brought about 
this result, however, was of too popular a nature to be 
satisfied with the Mikadoate exactly as it was before 1192. 
The desire, not to say demand, for a modification of the 
absoluteness of the Mikado's Government was too strong 
to be ignored. The Mikado issued a manifesto in the 
first year of his restoration promising to admit represen- 
tatives of the people to participation in the Government. 
Twenty years, however, passed before this promise was 
redeemed. Twenty years of absolute rule by the Mikado 
were regarded as necessary to prepare the country for a 
representative institution. At last, in the year 1889, a 
Constitution prepared by the Marquis of Ito, following 
rather closely the model of the Prussian Constitution, was 
proclaimed in force. 

From a cursory view of this instrument, one might form 
the opinion that Japan had established a Constitution 
quite on the Western order, but a critical examination of 
it will quickly convince any constitutional lawyer that 
most of the provisions of the instrument, which make this 
favorable impression, are illusory. First of all, it must be 
kept in mind that in the period between 1868 and 1889 
the Emperor, as we shall henceforth term the Mikado, and 
his chief ofiicials, had created, on the basis of the Imperial 
autocracy, a complete system of laws and ordinances and 
of governmental administration for the Empire, and that 



ASIA AND AFRICA 13 

in the Constitution of 1889 all this was declared as con- 
tinuing in force in so far as left unchanged by the provisions 
of the Constitution, which itself was only an Imperial edict, 
and changed the existing law, therefore, only in so far as 
the Emperor himself willed to do so. Then coming to the 
provisions of this instrument itself, we find that the ten- 
ure of the Emperor is primogeniture in the male line of his 
family by agnatic succession; that his term is eternal; 
that his person is holy and inviolable; that he is the head 
of the state and exercises the sovereign power; that the 
Constitution can be amended only upon his proposition; 
that he has not only the usual executive powers of com- 
manding the Army and Navy, appointing and dismissing 
all the civil and military officials, supervising the execu- 
tion of the laws, granting reprieves and pardons, and send- 
ing and receiving Ambassadors, other public Ministers and 
Consuls, but has, also, the power to fix the war and peace 
footing of the Army and Navy, their organization and the 
salaries of all officials both miHtary and civil, the power to 
declare war, make peace, and conclude treaties and agree- 
ments with foreign states, the power to declare the Em- 
pire in a state of siege and suspend all the rights of the 
subjects during such period, the power to call, open, ad- 
journ, and prorogue the Legislature and dissolve the Lower 
House thereof, the power to appoint the presiding officers 
of the two legislative bodies, the House of Lords and the 
House of Deputies, the power to virtually constitute the 
House of Lords; also the power to initiate legislation and 
to veto all projects of legislation coming to him from the 
legislative bodies absolutely, the power not only to make 
the ordinances for the administration of the laws, but to 
make ordinances which shall have the force of law, in 
case the Legislature is not in session and when he shall 



14 GOVERNMENT AND LIBERTY 

deem it necessary to the public security or the public wel- 
fare, and finally the power to control the expenditures in- 
curred in the exercise of his sovereign rights, and in respect 
to all appropriations made by law, and to all obligations 
binding upon the Government, and to put the budget of 
the preceding year in force in case the Legislature should 
refuse to vote the budget for the current year. 

These powers of the Emperor certainly make the Legis- 
lature virtually a debating society, despite the fact that 
the members of the Chamber of Deputies are elected by 
the male subjects twenty-five years of age and paying 
about seven dollars a year taxes. In fact the Constitu- 
tion declares outright that the Emperor exercises the legis- 
lative power with the approval of the Chambers. The only 
limitation which the Legislature can impose upon the abso- 
luteness of the Imperial prerogative is to prevent the en- 
actment of any new statute. But this is a limitation more 
apparent than real, since the Emperor can govern per- 
fectly well with the existing law, all of which was edicted 
by him or passed with his approval, or by means of ordi- 
nances supplementing the same. 

And when we come to the most important test of the 
character of a Constitution, viz. : the relation of the Gov- 
ernment to the individual citizen or subject, we do not 
find in the Japanese instrument any limitations upon the 
powers of Government in behalf of Individual Liberty 
which do not largely disappear upon close examination. 
The Constitution contains indeed an entire section devoted 
to this subject, which looks at first view like the usual 
Bill of Rights, guaranteeing freedom from arbitrary arrest, 
imprisonment, trial, and condemnation, from domiciliary 
search, from censorship over opinion and its expression, 
from interference with unions and assemblies, also, guar- 



ASIA AND AFRICA 15 

anteeing freedom of religion, of sojourn and domicile, of 
petition to the Government for redress of grievances, and 
the security of private property. But, when we scrutinize 
these provisions critically, we find, first, that they care- 
fully declare the Japanese people to be subjects not citi- 
zens, and nullify, practically, all of these guarantees by 
declaring them valid only within legal limits, that is, 
within the limits prescribed by the Emperor alone before 
the Constitution was declared in force, or by the Emperor 
with the consent of the Legislature, or by the Emperor by 
virtue of his ordinance power reserved in the Constitution. 

Moreover, the Judicial branch is constituted by ordi- 
nary statute and can, of course, be aboHshed in the same 
way, and although the Judges are appointed nominally 
for life they can be deposed by a disciplinary proceeding 
fixed by ordinary statute. Finally, there is not the shadow 
of a power vested in the Judiciary to defend the constitu- 
tional Immunities of the Individual against the acts of the 
Legislature, or indeed of the Emperor. If any controversy 
arises between an individual and an official it goes before 
the Administrative Courts, which are subject to the will 
of the Emperor. 

The Japanese are organized under this Constitution for 
the exercise of strong mihtary power, for presenting united 
front against foreign Powers and for restraining internal 
disorder, but it sacrifices Liberty to Government again 
and makes but little advance over the other Asiatic states 
in the maintenance of both Liberty and Government, and 
the harmonizing of both in a maturely developed political 
system of a superior order. 

The history and present political status of Persia is an- 
other example of the inability of Asia to solve our problem, 



1 6 GOVERNMENT AND LIBERTY 

while giving evidence of some consciousness of its existence 
and of some yearning for the conditions which its solution 
would bring. 

We do not need to waste our time and energy upon the 
history of ancient Iran, because, in the first place, we do 
not possess exact knowledge enough about it, and because, 
in the second place, we are bound to conclude from what 
we do know that, in its political system, Liberty was com- 
pletely sacrificed to Government, and that its political sys- 
tem was the usual Asiatic governmental despotism. 

First with the conquest of Persia by the Arabs and the 
introduction of Mohammedanism, in the seventh century 
of the Christian era, do we come upon anything in Persian 
political history which bears upon our subject. The or- 
ganization of the Arabian tribes into the Mohammedan 
state of Medina, then of Damascus, and then of Bagdad 
is the great political fact of southwestern Asiatic history 
from the seventh century to the rise of the Turks in the 
twelfth century. The Koran and Multeka of Mahomet 
contain in their spirit and provisions a certain limitation 
upon despotic governmental power, which lifts the political 
system subject to them up to a higher plane of civilization. 

Mahomet, born in the latter part of the sixth century 
in Mecca, found Arabia in the condition of tribal Gov- 
ernment, and tribal independence, according to which the 
bond of blood was the principle of political organization 
and the country was torn and bleeding by the dissensions 
of these petty states, if such organizations can be dignified 
by the name of states. Moved by the misery thus pro- 
duced he evolved and taught the doctrine of the oneness 
of God and the equality of men. When I say he evolved 
this doctrine I do not mean originated it for the world, 
but only for the situation of southwestern Asia in the 



ASIA AND AFRICA 17 

seventh century. Upon the basis of it he erected what 
we may call the democratic state of Medina, and began 
the work of dissolving the tribal organizations and subject- 
ing their elements to the new political principle of the 
Koran. 

There can be no question that here was a great advance 
in political civilization and in general civilization. It pro- 
duced two great states of the world, which have endured to 
the present day, viz. : Persia and Turkey, and I can see no 
other explanation for their continued existence, and their 
superior civilization to the unHmited despotisms which 
have risen and fallen in Asia, except the religious, moral, 
and civil limitations placed by the Koran and Multeka, and 
by the priesthood which have upheld them, upon govern- 
mental power and upon the tendency of an unchecked Gov- 
ernment to degenerate into despotism. No unprejudiced 
scientific mind can fail to see in the religion of Mahomet a 
vast advance over the polytheism of his time and region, 
in the morals of Mahomet over the barbarous and degraded 
customs of his age, and in the laws of Mahomet over the 
bloody strife and anarchy which universally prevailed. 
Even the condition of woman, usually regarded now as the 
most vulnerable point in the Mohammedan system, was 
vastly improved over what then obtained. 

The poHtical history of Persia from the time of its con- 
quest by the followers of the Prophet and the introduction 
of his system down to the year 1905 is the history of a 
change of dynasties rather than of a change of systems. 
The system had, however, a certain development. At 
first the Caliph was both the temporal and spiritual head 
of the state and people. Then, as the priesthood gradu- 
ally developed and became organized, the final interpre- 
tations of the Koran and Multeka were assumed by them, 



i8 GOVERNMENT AND LIBERTY 

and finally the supreme power of interpretation of the 
principles of Mohammedanism was recognized as centring 
in the Mujtahid, or chief priest, of Kerbela. For centuries 
the Caliph or Shah of Persia has had no voice in the ap- 
pointment of this chief priest. He is either chosen by the 
Ulemas or arrives at his office by a sort of natural selec- 
tion, by a general recognition of his superior ability to in- 
terpret rightly the principles of Mohammedanism. The 
independent position of the Mujtahid of Kerbela has been 
a real limitation upon governmental absolutism. The 
Shah has been the sole Government, but has been obliged 
to govern within the lines of the Koran and Multeka as 
interpreted finally by the chief priest. Here was a real 
contribution to the solution of the great problem of the 
reconciUation of Government with Liberty. The entire 
priestly organization defended a certain sphere of Individ- 
ual Immunity against the autocracy of the Shah. Here 
was the possibility of a continuous poKtical civilization. 
Fatefully, I will not say unfortunately or fortunately, for 
I know not which, for Persia, no Mujtahid of Kerbela has 
existed since the year 1895, but a long struggle not yet 
ended, over the great position has helped to plunge the 
unhappy land into confusion and anarchy. 

At the same time the increasing contact with Europeans 
and with Western civilization has undermined the influ- 
ence of the Mohammedan religion over the Persian people 
and the competition between Russia and Great Britain for 
the superior control has complicated the situation and 
demoralized the people still further. 

In 1905 the popular demand for a Representative Gov- 
ernment arose and could not be suppressed. In 1906 the 
Shah announced his consent to the establishment of a Na- 
tional Council elected by the descendants of the Royal 



ASIA AND AFRICA 19 

House, the members of tlie Kajar families, to which tribe 
the Royal House originally belonged, the priests, the land- 
owners, merchants, and tradesmen. In the autumn of this 
same year the members of this Council were elected and 
assembled, and the Shah signed formally the Constitu- 
tion, which contained the authority for the existence and 
powers of the Council as well as the other parts of the 
Government, and took the oath upon the Constitution in 
the presence of the Council. In June of 1908, taking ad- 
vantage of dissensions in the Council, the Shah dissolved 
it, and, by a decree, aboHshed it and with it the Constitu- 
tion. This precipitated the revolution of 1909 to which 
the Shah surrendered and abdicated. 

The Revolutionists restored the Constitution of 1906, 
elected the Vali-Ahd Shah and, also, the members of a 
new Council or Parliament. The Constitution, with the 
modifications introduced by the Revolutionists, although 
it contains something in the nature of a Bill of Rights, 
virtually vests all power, sovereignty, in the Government. 
The limitations imposed by the principles of Mohamme- 
danism in behalf of the subject are swept away. The 
Mohammedan religion itself is passing, and nothing in the 
way of a maker of character and conscience is taking its 
place. The poHce power of the Government is to be its sub- 
stitute until Great Britain and Russia see fit to make out 
of their spheres of influence territorial annexations. Again 
we are discomfited in our attempt to find any real contri- 
bution to the solution of our problem. 

Finally we come to the Ottoman Empire, a state which 
once reached magnificent proportions territorially and 
which more than once appeared capable of a political de- 
velopment of a high order. 



20 GOVERNMENT AND LIBERTY 

It was somewhere during the first half of the thirteenth 
century that a tribe of some four hundred famihes led by 
its chief, one Suleyman, left its home in Khorassan, in Cen- 
tral Asia, being crowded upon by a Mongol horde of ma- 
rauders, and trekked westward into Asia Minor. It set- 
tled in a valley near the Eastern frontier of the East 
Roman Empire and came into contact with the Moham- 
medan rulers in that section. Almost immediately its 
members embraced Mohammedanism, and by the begin- 
ning of the fourteenth century, under its chief Othman or 
Osman, it had entered upon its eventful career in civiliza- 
tion. 

It is not necessary to the subject of this book to enter 
upon the history of its conquests for the next two and a 
half centuries, through which it became the leading power 
of Asia and almost also of Europe, reaching from beyond 
the Tigris in Asia to the Danube in Europe and to the 
confines of Morocco in Africa. The things which chiefly 
concern us in this treatise is that this great Empire was 
from the first and continued to be, down to the most mod- 
ern period of history, moulded by the principles of Moham- 
medanism and owed its great success and its continued 
existence to this fact rather than to anything else and 
everything else. The Osmanli embraced freely the Mo- 
hammedan rehgion, and the Government of their Sultan 
was developed under its influences and its limitations from 
the very first period of their settlement in Asia Minor. 

As we have seen in another connection, the political re- 
sult of the adoption of this religion was the breaking down 
of the tribal lines as political divisions and the substitu- 
tion therefor of the idea of the unity of all behevers in Allah 
in one holy state, subject to Government according to the 
principles of the Koran and Multeka. The Osmanli found 



ASIA AND AFRICA 21 

the inhabitants of Asia Minor and of Asia generally, as far 
as to the confines of India, already prepared for the recog- 
nition of a state upon their basis. They carried their au- 
thority and their religion into Europe, on the other hand, 
solely by the power of the sword, and sought to substitute 
them there for a civiHzation both rehgious and political 
of a higher character than their own. 

The theory of the Ottoman system was, at least from 
the beginning of the fourteenth century, the autocracy of 
the Sultan as both Padishah and Caliph, that is, as both 
temporal and spiritual ruler; but there soon developed a 
powerful priesthood, the Ulemas, under the leadership of 
the Sheikh ul Islam, which claimed the ultimate interpre- 
tation of the Koran and Multeka and maintained this vast 
power upheld by the mass of beHevers, in other words, by 
the people. This was a democratic power, so to speak, 
organized in this powerful priestly corporation, which kept 
the Sultan within rational Hmitations and maintained a 
certain sphere of Liberty and even-handed justice for the 
subjects of his Government. The early Sultans were men 
of great ability and of austere virtue. They lived them- 
selves in accordance with the strict rule of the Moham- 
medan religion and ethics. 

It was only after they came into contact with the civi- 
lization of the East Roman Empire that the bonds of their 
own religion began to loosen and the consequent demoral- 
ization to manifest itself. The transformation of the mili- 
tary system and the establishment of the Harem followed 
quickly upon the invasion of Europe. The Osmanli, whose 
religious fanaticism had carried the power of the Sultan 
thus far, were superseded by the Janizaries, a new standing 
Army recruited from among the vanquished Christians. 
Without any religious or moral principle to nerve their 



22 GOVERNMENT AND LIBERTY 

arms, in the first place, or curb their passions, in the sec- 
ond, they became a terrible soldatesca, who carried terror 
with them in their conquests, and then laid their will upon 
the cowering Sultans dawdling in the Harem with the 
women. They actually made and unmade Sultans and 
scandalized the Mohammedan religion and morals. The 
Sultans tried again and again to reorganize their Osmanli 
subjects in mihtary power, but it was the first quarter of 
the nineteenth century before they finally succeeded, and by 
that time the Ottoman Empire was already in decadence. 

From the period of the Greek rebellion, in the third 
decade of the last century, onward the Ottoman Empire 
has been driven step by step from Europe and Africa and 
seems soon destined to be confined to Asia. Its contact 
with Europe, however, has, as I have said, demoralized its 
people and its Government. 

It began in 1876, in seeming good earnest, the work of 
Europeanizing its poHtical system, all unmindful that, while 
the European system is a great advance in political civili- 
zation over the original system of the Ottoman Empire, it 
cannot be grafted on a Mohammedan religious and ethical 
system without demoralization in both directions. In 
December of 1876, when called upon to face the demands 
of Europe in regard to the treatment of his European 
and Christian subjects, the Sultan proclaimed a Constitu- 
tion, fashioned after the European model. He seemed to 
prefer this to a treaty with those Powers upon this point. 
He could withdraw his Constitution at pleasure, but he 
could not withdraw from the obligations of a treaty so easily. 
The European Powers paid no attention to this Constitu- 
tion, but, by the resolutions of the Congress of Berlin of 
1878, imposed upon the Ottoman Empire its own terms. 
The Sultan, after this, seemed to feel no further obligation 



ASIA AND AFRICA 23 

to observe the Constitution and from 1878 on suspended 
its operation. 

For thirty years more the demoralization of the Mo- 
hammedan system continued. The Sheikh ul Islam and 
the Ulemas, as the final interpreters and teachers of the 
system of the Koran and the Multeka, lost largely their 
control both of the Government and of the conscience of 
the subjects. While the Government was growing thus 
more absolute on the one side, revolution was in fomen- 
tation on the other. 

At length, in the year 1908, what is called the young 
Turkish party forced the restoration of the Constitution of 
1876, with an important addition concerning Civil Rights, 
and in 1909 the abdication of Abdul Hamid II. They 
elevated Mohammed V to the throne and resumed the task 
of transforming the system of the Ottoman Empire into 
that of the European state. The Constitution is rather 
a Charter issued by the Sultan than an organic law adopted 
by the people. In it the Sultan is sovereign and can, 
therefore, change it or withdraw it as he will. In it the 
governmental prerogatives of the Sultan are declared to be 
the power to appoint and dismiss the Ministers of State, 
to confer office, rank, honors, and decorations, to invest 
with office the Governors of the self-governing or privileged 
provinces, to coin money, to conclude treaties with foreign 
states, to declare war and make peace, to command the 
Army and Navy, to issue edicts and ordinances for the ad- 
ministration of the law, to reprieve and pardon, to ad- 
minister justice according to the principles of the Koran 
and the Multeka, to call, open, and prorogue the Parlia- 
ment, to appoint the Senators for life terms, and to dissolve 
the Lower House of Parliament, and to appoint and invest 
with power the presiding officers of both Houses, to initiate 



24 GOVERNMENT AND LIBERTY 

exclusively legislation through his Ministers, to veto all bills 
and resolutions of the Legislature, and to promulgate and 
execute the laws. The participation of the people in the 
Government is to be seen only in their right to elect 
the members of the Lower House of ParHament and in the 
power of this House to prevent the passage of any new law 
or the repeal of any old law and to defeat, in whole or in 
part, the adoption of the budget. Inasmuch, however, as, 
according to other provisions of the Constitution, the Sul- 
tan's ordinances take the place of Parliamentary Acts, when 
the ParUament is not in session, a situation which the Sul- 
tan can control by using his prerogative of dissolving the 
Lower House, and the Sultan's edict may, when ParHament 
does not adopt the budget, authorize the continuance of 
the budget of the preceding year, and the laws in exist- 
ence at the time of the promulgation of the Constitution 
which do not conflict with any provision thereof are de- 
clared by the Constitution as continuing in force, this 
power of the ParHament to prevent the enactment of new 
laws or the repeal or modification of old laws is largely 
illusory. 

The point, however, of special importance to us in the 
inquiry is as to the power of the Government over the 
Immunities of the Individual. The Ottoman Constitu- 
tion contains the usual Bill of Rights of the modern Eu- 
ropean Constitutions, which provides freedom of religion, 
freedom of speech and of the press and of instruction, 
liberty of the person within the legal Hmits, security of 
property within the legal limits, inviolabiHty of the home, 
freedom of association and of petition, and the equal pro- 
tection of the laws. It furthermore provides that the in- 
terpretation of the law relating to the administration of 
justice falls, in last instance, under the authority of the 



ASIA AND AFRICA 25 

regular Court of Cassation, that the interpretation of ad- 
ministrative law, i. e., the law regulating the relations be- 
tween the officials of the Government and the subjects of 
the Sultan, falls, in last instance, under the authority of 
the Privy Council of the Sultan, and that the interpreta- 
tion of the Constitution falls, in last instance, under the 
authority of the Senate. Now the members of the Senate 
are appointed by the Sultan, with Ufe terms; likewise the 
Judges of the Court of Cassation and of all the Courts, 
with hfe terms; while the Privy Council is both as to the 
appointment and dismissal of its members completely sub- 
ject to the will of the Sultan. In the administration of 
justice between individuals, subjects of the Sultan, no mat- 
ter what their religion or race, the independent Judiciary 
has the final word and must, by the command of the 
Constitution, accord the equal protection of the laws, but 
when it comes to the crucial point, the relation of the 
Government to the individual subject, then we see the 
Liberty of the subject subordinated entirely to the Gov- 
ernment, and indeed to the Executive branch of the Gov- 
ernment. 

It is true that the Constitution declares, that in consti- 
tutional questions the power of final interpretation shall 
be exercised by the Senate and the members of the Senate 
are appointed by the Sultan for Hfe, as are the Judges of 
the Courts. It appears, therefore, as if the Senate occu- 
pies a position of equal independence with that of the 
Courts, and might be rehed upon to declare a statute or 
any provision, even though found in the Koran or the 
Multeka, null and void when in its opinion it shall con- 
flict with any provisions of the Constitution. It must, 
however, be remembered that, as to new statutes passed 
under the present Constitution, the Senate would have 



26 GOVERNMENT AND LIBERTY 

been participant in the enactment of the same and would 
not, therefore, be an impartial judge in their interpreta- 
tion, when called in question by an individual on the claim 
that they contravene his constitutional immunities. More- 
over, the only process provided whereby an individual could 
bring such a question before the Senate is petition, a very 
poor substitute for a regular judicial proceeding, and finally 
the Senate does not possess any machinery for executing 
its decisions against the Executive Government in behalf 
of the Immunities of the Individual from governmental 
power. The constitutional provisions appear, thus, largely 
illusory upon this most important question. In fact, they 
seem only to have done away with the ancient limita- 
tions of the Koran and the Multeka, interpreted by the 
independent authority of the Ulemas, upon autocratic 
power. 

To the genius of Asia, the solution of the problem of 
the reconciliation of Government and Liberty is clearly 
extremely difficult, not to say impossible from a purely 
secular point of view. In Asia nothing but a religion, or, 
at least, a universally accepted ethical system, interpreted 
authoritatively by a priesthood or a learned class, has 
seemed able to place any Hmitations upon the Asiatic ten- 
dency to despotism in Government; and when the Asiatic 
states thus constituted come into contact with European 
political civihzation the only effect, from this point of 
view, seems to be to free Government from the limitations 
of these religions, or quasi-religions, without finding any- 
thing of a secular legal character to substitute for them. 
In other words, the attempt to graft a European govern- 
mental system upon a Mohammedan or Confucian popu- 
lation seems to have for its results the establishment of a 
secular despotism and the destruction of the national 



ASIA AND AFRICA 27 

religion or the national morals, and this is nothing more nor 
less than the substitution in greater or less degree of the 
police powers of the Government for the rehgious or ethical 
conscience of the subjects. 



CHAPTER II 

THE EFFORT OF AFRICA 

If Asia has done little toward the solution of the great 
problem, Africa has done next to nothing. Upon the vast 
African Continent of twelve milUon square miles of terri- 
tory, inhabited by one hundred and fifty millions of people, 
only three small countries containing altogether less than 
five hundred thousand square miles of territory, inhabited 
by less than fifteen milHons of people, can be in any sense 
called independent and sovereign states, and they cannot 
in any full and sufficient sense. They are Abyssinia, 
Liberia, and Morocco. 

The first is, in some degree at least, under the joint 
protectorate of Great Britain, France, and Italy. The 
second is a protege of the United States, and the third is 
under the protectorate of France and Spain or rather now 
of France in reference to the maintenance of the public 
peace and order. 

Ten milHons of square miles of the African Continent are 
in the possession of the European states as Colonies or 
Dependencies, and about one million five hundred thou- 
sand square miles are either without any population or are 
inhabited by beings in a condition of barbaric anarchy. 

Of the three countries which I have mentioned as quasi- 
sovereign states, one, Liberia, may be left out of consid- 
eration, since it is composed chiefly of negroes transported 
from the United States of America and their descendants, 
has had its poUtical Constitution made for it by the Gov- 

28 



ASIA AND AFRICA 29 

eminent of the United States, and as a state is only a feeble 
copy of its great model. In other words, Liberia has done 
nothing of itself toward the solution of the problem of the 
reconciliation of Government and Liberty. We will con- 
fine our attention then to the other two. 

The Abyssinian Empire is one of the oldest states of the 
world. It was ancient Ethiopia and had once for its ruler 
the famous Queen of Sheba. Its inhabitants were con- 
verted to Christianity in the first half of the fourth cen- 
tury, and have from that day to this considered themselves 
subject to the patriarchate of Alexandria. At present it 
occupies chiefly the mountain plateau of Eastern Africa, 
with an area of some two hundred thousand square miles 
of fertile soil, under a salubrious climate, occupied by 
about ten millions of inhabitants. Some of the conditions, 
at least, favorable to the creation of a civilized state are 
to be found here. Little advantage, however, seems to 
have been taken of them. 

We know a little of the activities of the people in these 
regions down to the seventh or eighth centuries, and after 
that for a thousand years Ethiopian darkness settled over 
them. When they emerged again into the light of history, 
in the middle of the nineteenth century, we find as poUtical 
institutions, first, the Emperor, or Negus, the owner, in 
theory, of the entire territory, and the unHmited Sovereign 
over the inhabitants of it, but, in fact, living in strict re- 
tirement in his Imperial abode, exercising almost no gov- 
ernmental power; second, the Rases, the feudal Lords of 
the provinces which had been conferred in fief upon them 
by the Emperor, exercising, in fact, unlimited powers over 
the inhabitants of their respective provinces, and paying 
the Emperor a small tribute and furnishing him a small 
contingent of armed men; and, thirdly, a very numerous 



30 GOVERNMENT AND LIBERTY 

priestly class, well organized, under the immediate control 
of a native Ecclesiastic and the superior control of the 
Christian High Priest at Alexandria, or Cairo, and exer- 
cising vast influence, religious and educational, over the 
people. 

Contact with the outer world had the usual result of 
strengthening the central power over against the local. 
The European states recognized only the authority of the 
Emperor, and the Emperors Theodore Johannes and Men- 
elek brought the feudal Lords under greater subordination 
and created several new instruments of Government. The 
first was an Army of Mercenaries in place of, or rather 
alongside of, the feudal miUtia; the second was a Minis- 
try of five Secretaries, Foreign Affairs, Finance, War, Jus- 
tice, and Commerce; and the third, a Privy Council com- 
posed of the officials of the Palace and the Rases, or feudal 
Lords. The absolute and unlimited power of the Emperor 
in all respects is now in course of re-establishment through 
these means. 

The one institution which is able to impose limitations 
on the power of the Emperor or that of the feudal Lords is 
the priestly organization. This is said to consist of nearly 
one hundred thousand persons. They are the wise men 
and as such are respected and revered by the people. They 
wield an influence which can neither be ignored nor disre- 
garded. For sometime now they have been sustaining the 
Emperor against the feudal Lords. The recent attempt 
of the Emperor Menelek, however, to secularize education, 
raised up hostility which may greatly hinder the develop- 
ment of the central authority. It was ill-timed. For a 
long time still to come the control of education by the 
Clergy, the Christian Clergy, will be for the welfare of the 
Empire. If the Emperor should succeed in taking this out 



ASIA AND AFRICA 31 

of their hands and placing it in the hands of his own ap- 
pointees, it is easy to see that the coming generations may 
be and probably will be educated out of the idea that the 
Christian priesthood are authorized to limit the Emperor's 
sovereignty and Government by the rule of Christian morals 
interpreted by them. The autocracy of the Emperor over 
the priesthood would signify the complete despotism of the 
Emperor both in theory and practise over every subject. 

In Morocco, we reach the purest type now extant of the 
Mohammedan state. The Sultans of Morocco claun to 
be, and are regarded as being, the descendants of the 
Prophet himself. They regard themselves as possessing 
both the spiritual and secular power, that is, complete 
sovereignty, and such is the accepted theory of this system. 
Nevertheless, there are, in practise, limitations upon their 
power, which give the subject a living chance. In the first 
place they must create and maintain the physical means 
for the realization of their claimed authority. This neces- 
sitates concessions, at least, to a certain part of the sub- 
jects. In theory, the Moroccoan state is the community 
of believers in the Koran and their Cahph is sovereign. In 
fact, the Sultans have created a ruUng class within the 
community of believers, consisting of his appointed agents 
at the Court and in the locahties, his mercenary soldiers, 
and those upon whom he or his predecessors have con- 
ferred landed property in the form of fief. This body of 
men constitute the physical force through which the Sul- 
tan realizes his power and this power extends really only 
so far territorially as they are able to enforce it. In order 
to secure the loyalty and services of these men, the Sultan 
frees them from taxation and pays most of them a sort of 
salary or wage besides. It is from this body also that he 



32 GOVERNMENT AND LIBERTY 

takes his governmental agents, and it is this body which 
really exercises the reserved power of the community of 
beUevers whenever it comes to such action. This body, 
therefore, may, if it will, curb the despotic power of the 
Sultan, as well as maintain it, over the common subject. 

Then there exists the College of Ulemas at Fez, which 
claims the authority of ultimate interpretation of the 
Koran, the precepts of which the Sultans must follow in 
the exercise of their authority. This is the general prin- 
ciple of the Mohammedan state wherever it has existed or 
still exists. According to the Moroccoan system the will 
of the Sultan in legislation, administration, and judicial 
action is supreme, and all of his decrees and decisions 
are law, but if he ventures to violate or disregard the pre- 
scripts of the Koran, as interpreted by the College of Ule- 
mas at Fez, then this body claims the power — ^and this 
power is accorded to it by the common tradition of the 
community of believers in the Koran — of admonishing the 
Sultan and, in case the violation be in its opinion flagrant 
and intolerable and the admonition be disregarded, of ab- 
solving the community of believers from its loyalty to the 
Sultan and authorizing the community to dethrone the 
Sultan; and since this reserved sovereignty of the com- 
munity of behevers has been in practise usurped, so to 
speak, by the ruling class, the composition of which has 
been already described, the power of dethroning the Sul- 
tan on account of what we would call unconstitutional ac- 
tion as determined by the College of Ulemas may be exer- 
cised by what we may call the Imperial Council of officials 
and vassals. It is indeed true that the Sultan may, in 
collusion with the College of Ulemas, really violate the 
principles of the Koran defensive of the Liberty of his sub- 
jects, and rule despotically, since this College is considered 



ASIA AND AFRICA 33 

as having the sole power of determining ultimately whether 
the acts and commands of the Sultan are violative of the 
higher law of the Koran or not; but, again, the Ulemas are 
independent of the Sultan in their tenures and they and 
their predecessors have built up a tradition in their inter- 
pretation of the Koran, a tradition known to the com- 
munity of believers, and they are themselves limited by 
the same in practise, if not in theory. Historically, the 
voice of the Ulemas is sometimes low and pleading as for 
mercy, and often not heard at all, but again it is stern and 
commanding, and the Sultans have yielded to it. Also, 
the Sultans often consult the College of Ulemas when on 
the point of undertaking something questionable from the 
point of view of the higher law and generally, in such cases, 
follow their opinion. 

Turn in whatever direction we may, we find the theo- 
retical despotism of the Sultans of Morocco working under 
very substantial limitations in behalf of the Liberty of the 
subject. There is a higher law than the will of the Sul- 
tan, viz.: the Koran; and there is a body of wise men, 
independent of the Sultan in their position, who have the 
power of ultimate interpretation of the prescripts of the 
Koran, even against the Sultan himself, and the power to 
enforce their interpretations, finally, against him by au- 
thorizing the community of believers to dethrone him. It 
is to be apprehended that the introduction of European 
methods and influence, now in process, will modify this 
system and, while it may bring more security to Christians, 
will accord less of Liberty to the behevers in Islam. 

It will thus be seen that the efifort of both Asia and 
Africa to solve the great problem of the reconciliation of 
Government and Liberty has manifested itself more clearly 
in the Mohammedan states than elsewhere. Had the sub- 



34 GOVERNMENT AND LIBERTY 

jects of these states been wholly Mohammedans by their 
own choice and conviction it is not impossible that these 
states may have gone much further in this great work than 
they have. It is just their determination to extend the 
rule of their faith by the sword of the Prophet which has 
done more than anything else to hinder their progress in 
this most fundamental direction. Unlimited despotism 
over the non-Mohammedan subject tends to the establish- 
ment of the same sort of rule over the Mohammedan sub- 
ject. This is one of the oldest experiences of practical 
politics. It was not necessary that the Mohammedan 
Governments should deny to their non-Mohammedan sub- 
jects the same Liberty granted to their Mohammedan sub- 
jects, although it is easily conceivable that their religious 
fanaticism led them into this vicious course. The Moham- 
medan system contained the elements for considerable de- 
velopment in the general direction of modern poUtical 
progress. Briefly these elements were, first, the sovereignty 
of the community of believers; second, the interpretation 
of the principles of the Koran by the Ulemas; and third, 
Government by the Sultan or Shah. If some modern 
statesman could have given these a secular turn, it would 
not have been a far call to real modern constitutional 
Government and a better reconciUation of Government and 
Liberty. Let us hope that when the Turks return to their 
Asiatic home, with the experience of their European so- 
journ, such a statesman may rise among them and make 
their state the light of Western Asia. 



BOOK II 

THE EFFORT OF EUROPE 

CHAPTER I 

ANCIENT GREECE 

The publicists almost universally claim that real polit- 
ical science begins with the Greeks, and that with the 
Greeks self-conscious man first attains political as well as 
philosophical and artistic development. The Greeks, they 
claim, first founded the state upon human nature and made 
of it an entirely human institution. Plato defines it to be 
the highest revelation of human virtue, the perfection of 
mankind. Aristotle also calls man a political being and 
defines the state as the community of its citizens in the 
work of perfecting human existence; founded first for the 
security of human Hfe, it becomes finally the great organ 
of human welfare. We would naturally expect that, with 
such development of poHtical thought, a system of prac- 
tical politics ought to have been estabHshed, which would 
have gone far in solving the great problem of the reconciHa- 
tion of Government and Liberty, but a careful and critical 
study of the poHtical history of the Greeks does not reveal 
anything very satisfactory in this respect. The Greeks, as 
all the peoples of antiquity, confounded the state with the 
Government and, because they recognized the state as sov- 
ereign, made Government almighty. In other words, they 

35 



36 GOVERNMENT AND LIBERTY 

recognized in their political science or in their practical 
politics no sphere of Individual Immunity against govern- 
mental power. Consequently they did not even recognize 
with any clearness of consciousness the problem of the 
reconcihation of Government and Liberty. Nevertheless, 
the careful student cannot fail to discern in the investiga- 
tion of their institutions a feehng of the existence of this 
great problem and a groping after its solution. 

Ancient Greece, as every one knows, was, until the period 
of the Macedonian supremacy, in the middle of the third 
century before the Christian era, more a geographical than 
a political term. Territorial Greece was, in antiquity, the 
home of a number of independent states, sometimes in 
partial confederation, sometimes not. These states the 
political historians generally classify according to two 
models, the one Sparta and the other Athens, the one 
class comprehending what they term the oligarchies, the 
other the democracies. Without adopting either the no- 
menclature or the conclusions of these historians we may 
accept their proposition far enough to justify us in confin- 
ing our attention to these two states in our search for any 
evidences of the consciousness of the problem of the recon- 
cihation of Government and Liberty and for any attempt 
to solve it. 

More than a thousand years before the beginning of the 
Christian era a migration of tribes in mihtary organiza- 
tion from the southern spurs of the Balkans into the middle 
and southern portions of the Greek peninsula seems to have 
taken place, similar in many respects to the Teutonic mi- 
grations into the ItaUan peninsula nearly fifteen hundred 
years later. They came, that is, under the sole and un- 
limited command or Government of the mihtary Chief, the 
leader, chosen by them in some rude way, of the migration. 



THE EFFORT OF EUROPE 37 

Such a band of people called Dorians penetrated into the 
lower end of the peninsula, into the rich valley of Lace- 
daemon, and there under the shadow of Mount Taggetus, 
on the bank of the Eurotas, built their huts or rather 
pitched their camp, out of which was developed the city 
and state of Sparta. 

The Dorians displaced a preceding population, driving 
some of them back upon the less fertile tablelands which 
rose out of the valley, or subjecting them as peasants and 
slaves to work the soil occupied by themselves or to do 
the menial service of the household. These movements 
determined the social character of the Spartan Common- 
wealth. First there was the conquering race, then the 
free farmers on the plateaus, and lastly the peasants and 
slaves. Only the first class constituted the political people 
and, as we have said, they were organized about their mili- 
tary Chieftain and subject to his unlimited command. Of 
course, so soon as the Dorians went over to the pursuits of 
peace the mihtary organization would soon be felt to be 
unnatural and unbearable and Hmitations upon it would 
be demanded, if it should not be wholly set aside. 

The reorganization came somewhere about the middle 
of the ninth century before Christ and is connected with 
the name of Lycurgus. This Lycurgan Constitution con- 
tained three chief provisions. First, it left the mihtary 
Commander, the Duke, as Governor in peace, as King with 
a Hfe term, and with a tenure which probably contained 
both the elements of hereditary right and that of election 
by the "Gervasia," the Senate of Elders. Secondly, it 
constructed a Senate of the house fathers, the heads of 
families of the ruHng race, and an Assembly of all male 
adult Dorians. The King was still Commander-in-Chief, 
but was recognized as the administrator of law and justice 



38 GOVERNMENT AND LIBERTY 

personally, and through his own appointed agents, while 
the Senate, with the approval of the Assembly, exercised 
in an illy defined way what we may call the legislative 
power, and the power, under certain hmitations, of electing 
the Eang. 

The part of this Constitution, however, pertinent and 
important to our inquiry was the College of Ephors, or 
overseers. Unquestionably, the purpose of this institution 
was to hold the Government in all its activities within 
the limits of ancient custom. The College consisted of 
five persons chosen by the Assembly upon nomination by 
the Senate, i. e., practically chosen by the Senate, and all 
officials of the Government both civil and military, even 
the King or Kings — for there were two members of the 
Royal House considered as ruling at the same time — were 
subject to their control. This practice of having two Kings 
in Sparta at the same time was maintained probably for 
the purpose of hindering the extreme development of au- 
tocracy, but it was the College of Ephors which was con- 
sciously designed to hold the Government within the 
bounds of constitutional limitations and prevent its be- 
coming completely despotic. 

Here was certainly an early effort to reconcile Govern- 
ment with Liberty, with Liberty as expressed in ancient 
custom, i. e., as expressed in folk custom, popular custom. 
The Ephors were probably selected for their knowledge of 
this custom and they were furnished with practically un- 
limited authority to uphold it. It was certainly a dan- 
gerous pinnacle of power upon which they stood. Had 
they confined themselves to the task of protecting the 
individual citizen of Sparta against the encroachments of 
Government upon his sphere of customary Liberty, the 
development of the Lycurgan Constitution might have 



THE EFFORT OF EUROPE 39 

proceeded very far and have reached a high degree of po- 
litical civilization. But it is hardly to be expected that 
they should have been able to make such fine distinctions. 
With the unlimited power of control over all governmental 
action, it is quite conceivable how, with the most honest 
and honorable intentions, they, regarding themselves as 
the representatives of the people, should be, it may have 
been quite unconsciously, betrayed into usurpations of the 
powers of the Government, until they should practically 
establish an oligarchy of the most despotic character, since 
no constitutional check upon them had been created. This 
was exactly what happened. Instead of being, as was 
originally intended, simply a check upon Government in 
behalf of customary rights, this College or Board of Ephors 
became in fact the Supreme Government of the state and 
reduced all other parts of the Government to the position 
either of agents of its will or ratifiers of its propositions. 
It was just as if the Supreme Court of the United States 
should ordain the enforcement of its interpretations of so- 
cial conditions and requirements as law, as many of our 
advocates of so-called "Social Justice" are urging it to 
do, instead of adhering strictly to the interpretations of 
the law. 

This advance of the College of Ephors from the position 
of a Board of Control to that of actual Government was, of 
course, very gradual and extended through a long period 
of time. For decades, yes for centuries, the Assembly of 
citizens was not conscious of it, but seemed to think that 
the Ephors were only representing the growing power of 
the citizens against the Kings and their Government. It 
was the Kings, if anybody, who were conscious of it, but 
their resistance to it seemed at first only to stiffen the sup- 
port of the Assembly for these usurpations. It required 



40 GOVERNMENT AND LIBERTY 

nearly five hundred years of this development to bring its 
real nature to general recognition. In the third century 
before the Christian era, King Cleomenes felt himself suffi- 
ciently sustained by what we may call general opinion to 
put the entire body of Ephors to the sword and abolish 
the institution. 

With this event, the effort of Sparta to limit Government 
in behalf of Individual Liberty ceased altogether. The fail- 
ure to solve this great problem was the beginning of the 
end, for although the despotic Government might for a 
time, and even in consequence of its despotic power, win 
victories over other states, yet the poison had entered into 
the veins and tissues of the Spartan Commonwealth and 
was bound in time to sap, first, the strength of the indi- 
vidual citizen and then that of the Commonwealth, which 
is only the totality of its individual members. 

The Athenian state had a like origin and, as far as our 
problem is concerned, made a somewhat similar develop- 
ment. An Ionian tribe in military organization under 
the lead of a chosen Chief settled itself down upon a pre- 
ceding population in the Attic plain, somewhere about one 
thousand years B. C. It subjected four-fifths of the exist- 
ing population, at least, to slavery and drove the rest back 
upon the higher lands surrounding the plain. The rude 
huts of military occupation built by this tribe upon the 
plain developed into the City of Athens and the tribe it- 
self into the Athenian Republic. 

The first political change after the settlement was in- 
duced by the transition from a condition of war and migra- 
tion to a condition of comparative peace. The members 
of the tribe in tribal assembly began to place limitations 
upon the power of the Chief, whose unlimited authority 



THE EFFORT OF EUROPE 41 

as military Commander was soon felt not to comport with 
the new conditions of settlement and general peace. They 
first took away from the King his priestly functions and 
changed his title from Basileus to Archon to emphasize 
the fact that he was only the civil or secular ruler. They 
then changed his tenure from hereditary right to election 
and his term from one for life to one for ten years. Finally, 
they divided the Royal power among nine Archons, selected 
by them annually. The nine Archons wielded together the 
whole power of the state, and the sole defense of Liberty 
consisted in the fact that they did not act together as a 
Board or College or Ministry, but separately. Such separate 
action, however, threatened anarchy in the Government. 

The Athenians were some four hundred years in accom- 
plishing these results, when they seemed to become con- 
scious that something must be done to overcome the 
disintegrating tendency of the nine-headed Government. 
They authorized one of their leading men, Draco, to codify 
the laws or customs for the guidance of the Archons and 
for the limitation of their discretion in Government. 
The Draconian code was not invented by Draco, and its 
severity cannot be attributed to him personally. He only 
gathered together in a compendium what already existed. 
One great step, however, was taken in connection with 
the promulgation of this code, whether originated by 
Draco or not. It was the establishment of a Court called 
the Ephetae, separate from and independent of the Archons, 
and the investment of this body with supreme criminal 
jurisdiction. 

These reforms, which took place somewhere about six 
hundred and twenty-five years before the Christian era, 
did not, however, prevent the rise of a demagogue upon 
the ground of the popular discontent, who made the at- 



42 GOVERNMENT AND LIBERTY 

tempt to establish what we now call the Caesaristic democ- 
racy, one Cylon. He failed, however, and the Athenian 
Nobles confided the cause of reform to one of their own 
number who had won already great reputation for himself 
as a man of judgment, impartiality, force, and patriotism, 
Solon. 

The reform of the Athenian state by Solon, somewhere 
about six hundred years before the beginning of the Chris- 
tian era, gave to the Republic its most substantial institu- 
tions. Passing by his economic and monetary arrange- 
ments, his political reforms consisted of four general crea- 
tions or modifications of what already existed. The first 
was the classification of all Athenian citizens, i. e., of all 
Athenians having any poHtical rights, into four classes in 
accordance with the amount of taxes or contributions paid 
by them into the Treasury of the state, and confining eligi- 
bility to the Archonships to the first class and limiting the 
political privileges of the fourth class to voting in the As- 
sembly. The second was the rejuvenation of the Assem- 
bly so that it became the real lawmaking power of the 
RepubHc and the source of the tenure of the Archons, as 
well as the supreme controlling body over their adminis- 
tration. The third was the creation of the Council of the 
Four Hundred, its members chosen annually by the As- 
sembly, to prepare legislation for, and introduce it into, 
the Assembly. The fourth, and for our subject far the 
most important, was the transformation of the Court of 
the Ephetae, called the Court of the Areopagus, by filling 
its seats with those outgoing Archons whose administra- 
tion had been approved by the Assembly, and by confer- 
ring upon it a general power of censorship over the acts 
of the Government and a veto upon the laws which vio- 
lated in their opinion ancient custom or sound morals. 



THE EFFORT OF EUROPE 43 

Here was, again, quite a conscious effort to reconcile 
Government and Liberty, an effort which might have suc- 
ceeded much better had the Court of the Areopagus con- 
fined its vetoes to laws and administrative acts contraven- 
ing the customary Civil Liberty of the citizen and subject. 
So far as we know, it made no such sound distinction, 
and the Solonian Constitution did not last half a cen- 
tury before the cry was raised against it that it was plu- 
tocratic. 

It was natural that this feeling should produce a dem- 
agogue and be taken advantage of by a demagogue. 
About 560 B. C. he appeared, Pisistratus, at the head of 
the Highlanders, the poorest of the citizens of Athens, and 
in a struggle of fifteen years he overthrew the Government 
under the Solonian Constitution, and for eighteen years, 
until his death, reigned and ruled as the Tyrant of Athens. 
The historians agree that he governed benevolently and 
beneficently. It was his son, Hippias, who succeeded him 
in 527 B. C, through whom the real nature of the tyranny, 
the democratic Caesarism, came to full manifestation. 
The Spartan state, seeing its own demoralization in the 
triumph of this pseudodemocracy in Athens, now inter- 
fered and, in the year 510 B. C, or thereabout, drove the 
house of Pisistratus out of Athens. 

In the struggle which now followed between the Nobles, 
the middle class, and the proletariat, the middle class, led 
by CHsthenes, won the day. The reforms now introduced 
by CHsthenes developed, according to the ideas of Herod- 
otus, the genuine Athenian democracy. He abolished 
the social and political classification of Solon and divided 
the whole citizenship of Athens without regard either to 
birth, blood, or wealth into ten tribes upon a territorial 
basis. He increased the number of the Solonian Council 



44 GOVERNMENT AND LIBERTY 

from four hundred to five hundred members, fifty being 
elected from and by each of the ten tribes. The Court of 
the Areopagus was left as before and, of course, the Archon- 
ship; but new popular Courts, consisting of citizens, were 
instituted, in which speedy and inexpensive justice in mi- 
nor cases could be secured. Sparta again objected to this 
democratic development and King Cleomenes again in- 
vaded Attica and drove out Clisthenes and his following. 
Isagoras, the leader of the Aristocratic faction, was made 
Archon and many of the democratic leaders were banished. 
This provoked a popular insurrection, which momentarily 
restored Clisthenes, only to be driven out again by Cle- 
omenes. By this time, however, the Spartan opposition to 
the democratic development in Athens had largely spent 
itself and Athens was left, at last, about 500 B. C, to 
follow its own course. 

For the next twenty-five years the Republic was engaged 
in the great war with Persia, the influence of which over 
the internal situation was, as is practically always the case, 
the increase of the power of the Government at the ex- 
pense of Individual Liberty; and the final triumph of the 
Greeks only increased this tendency. The services ren- 
dered by the lower classes, or rather poorer classes, of the 
Athenian citizens in this struggle led to the members of 
these classes being made eligible to the highest ofiice in 
the Government, the Archonship, upon proposition of 
Aristides himself. Another important result of the change 
of spirit in the Athenian Republic brought about by the 
triumph over Persia was the haughty supremacy and 
domination which Athens now assumed over her confed- 
erates. The Delos Confederation, as the league between 
Athens and her Greek allies was termed, was transformed 
into the Athenian Empire by the exercise of military force. 



THE EFFORT OF EUROPE 45 

and the independent Governments of these allies were re- 
duced to dependencies of Athens. 

This was the situation in Athens when Pericles came to 
the front as the leader of the democracy. His personality- 
dominated nearly everything from the beginning of his 
career. He was a philosopher, an orator, a statesman, an 
astute politician, a great soldier, and a great patron of art 
all combined — the ideal Caesar. He flattered the people. 
He distributed the public money among the poor. He in- 
troduced the system of paying for all official service, in 
order to enable the poorer classes to occupy office. Plato 
evidently regarded him as a first-class demagogue and as 
a corrupter of the Athenian people. Plato declares out- 
right that he rendered them lazy, avaricious gossip-mon- 
gers. Early in his great career he attacked the Court of 
the Areopagus as an aristocratic institution, consisting as 
it did of the retiring Archons, after approved administra- 
tive activity, holding for life and exercising the power of 
controlling the administration of the Archons and vetoing 
legislation which in their opinion violated the customary 
Liberty of the people or sound morals. Through his impas- 
sioned appeals to the people against this great Court, Per- 
icles finally succeeded, by popular support in the Assembly 
and out of it, in destroying these great conservative powers 
and in reducing this Court to a mere criminal tribunal. 
With this the great balance-wheel of the Athenian Consti- 
tution was discarded and personal Government ruled un- 
hindered. Pericles himself exercised his vast despotic 
power with wisdom, success, and moderation, but he had 
no Pericles for his successor. 

The death of Pericles, in 429 B. C, was in reality the 
close of the brilliant period in Greek history which bears 
his name. After him the despotism of the Government, 



46 GOVERNMENT AND LIBERTY 

which he had estabUshed, continued unchecked and re- 
duced the Athenian people more and more to the condi- 
tion of idle, deceitful, self-respectless, gossiping paupers 
and beggars, and the great and promising effort of the 
Athenian state to solve the momentous problem of the 
reconciliation of Government and Liberty had exhausted 
itself permanently. I say the promising effort, because the 
Court of the Areopagus must be regarded as having been 
in its composition and powers better calculated to solve 
this problem than the Spartan College of Ephors. In the 
first place, its membership was larger and contained the 
best wisdom and experience of the Republic, the retiring 
Archons whose administrations had been approved by the 
Assembly and by public opinion; and, in the second place, 
it did not usurp governmental power itself, as did the 
College of Ephors, but confined itself to limiting the powers 
of Government by the rule of ancient custom and good 
morals. The imperfections in this order of things were 
that it did not provide for the development of, or changes 
in, ancient custom and made the Court of the Areopagus 
the supreme interpreter of morals as well as law. In other 
words, the powers of this Court as interpreter of the Con- 
stitution went too far, or perhaps it would be more intelli- 
gible to say that the Constitution was too uncertain, since 
it was in theory the code of morals and of customs of the 
Athenians. This uncertainty opened too wide a realm for 
interpretation by the Court of the Areopagus. It gave this 
Court really too much control over the development of 
law and custom, and the general consciousness of this 
situation which gradually developed enabled the skilful 
Pericles to create a powerful popular hostility to the Court, 
which finally deprived it of its power of limiting the actions 
of the Government within the bounds of good morals and 



THE EFFORT OF EUROPE 47 

ancient custom. If the Athenian politics had provided a 
sovereign back of both the Court and the Government, 
which should have drawn and redrawn, from time to time, 
the line between the functions of the Government and the 
Liberties of the Individual, and have empowered the Court 
to hold each, by its interpretations, within its constitutional 
sphere, then might the Court have lived and maintained 
its great powers of constitutional interpretation and the 
Government have been restrained by it from becoming 
despotic. As it was, however, with the Athenian people 
acting immediately as the Legislature, a conflict between 
the Court and the Government could end only one way. 
The Athenian people could not distinguish between their 
sovereign act investing the Court with its wide powers of 
interpretation and their ordinary legislative act, but under 
the influence of the eloquent sophistry of Pericles came to 
view the functions of the Court as usurpations of a power 
over the people. 

When, now, all the Greek states became, about four hun- 
dred and thirty years before the beginning of the Christian 
era, simply despotic Governments, i. e., unlimited Govern- 
ments, Governments which were sovereign over against 
the citizen and the subject, then the possibilit}^ in logical 
thought for the creation of a federal system of Govern- 
ment including all of the Greek states was destroyed, be- 
cause for the establishment of such a system the organiza- 
tion of a National sovereignty back of, and supreme over, 
all these states was the prime necessity, which should have 
created a National Constitution of Government and Liberty 
and a central Government, and have distributed the powers 
of Government between the central Government and the 
original states. In the absence of such a conception in the 
system of each of the states, it could not exist for the or- 



48 GOVERNMENT AND LIBERTY 

ganization of the Greek Nation. Consequently the only 
alternatives were that the Greek states should remain en- 
tirely independent of each other, or form interstate leagues 
or confederations, or that one of them should subject the 
others to itself and make them dependencies, or finally 
that a foreign power, both nationally and politically, should 
come in and establish its empire over them all. 

Twenty-five years of struggle between Athens, Sparta, 
and Thebes for the ascendancy now followed with no con- 
structive result; then sixty-five years of consequent ex- 
haustion and indifference opened the way for the barbaric 
military Monarchy of Macedon to subject them all to its 
despotic rule, which expended itself and the whole politi- 
cal capacity of the Greeks during the next two centuries 
and made them all the prey of the foreigner. The politi- 
cal centre of Europe and the world had moved westward 
and was now constructing the system of the great World- 
Empire of Rome, and to that we must now look for fur- 
ther advancement toward the solution of the great prob- 
lem of the reconciliation of Government and Liberty. 



CHAPTER II 

THE EFFORT OF ANCIENT ROME 

The earliest political situation in Rome of which we 
have any credible historical account was one presenting 
as political institutions: first, the Kingship exercising all 
the powers of Government of whatever nature; second, 
the Senate of Elders, the heads of the leading families; 
and third, the Comitia Curiata. The Comitia Curiata was 
an assembly of all the members of the thirty curiae of 
Rome. The curia was a body of territorial neighbors wor- 
shipping under a common priest and around a common 
hearth. Of course, only the freemen among these ap- 
peared as members of the Comitia Curiata. The functions 
of the Senate and the Comitia Curiata were not those of 
Government, but the prevention of arbitrary Government 
by the King and the election of the Kling. The Senate 
protected the rights and privileges of the Patrician class 
and the Comitia Curiata those of the common freemen. 
So long as the Senate and the Comitia Curiata did not 
participate in the Government, they constituted a check 
upon Government in behalf of Liberty which was decidedly 
effective. The Senate gave the King counsel, and he 
could make no law which was valid against the veto either 
of the Senate or of the Comitia Curiata. 

Under this form Rome progressed for nearly two cen- 
turies, adding populations which were neither represented 
in the Senate nor in the Comitia Curiata, when the sixth 
King, Servius Tullius, added a new institution, first as a 

49 



50 GOVERNMENT AND LIBERTY 

new system of military organization, and then as a political 
organization. It was termed the Comitia Centuriata. 
Briefly it was constructed by dividing the entire arms- 
bearing population into centuries, i. e., bodies of one hun- 
dred men, of which there were, at the time of Servius Tul- 
lius, some two hundred centuries or twenty thousand men. 
These centuries contained the whole population. Patrician 
as well as Plebeian, and were arranged, as to the order in 
which they stood and as to the arms they bore, according 
to their wealth and position in the society. As afterward 
assembled in the Comitia Centuriata they voted in a ratio 
depending on these same distinctions. The Senate and 
the Comitia Curiata were Patrician, being composed of the 
original families of the city, but the Comitia Centuriata 
contained all free Plebeians as well as the Patricians and 
the inhabitants of the country districts as well as of the city 
proper. 

This new Comitia participated in the Government no 
further than did the Senate and the Comitia Curiata. It 
was simply a popular check upon the King's Government. 
It can hardly be considered as having been a genuine pop- 
ular check since, as we have seen, it contained Patricians 
as well as Plebeians, and the Patricians had the greater 
weight in the determinations of the body. The King's 
Government was now held in check by the three bodies, 
the Senate, Comitia Curiata, and Comitia Centuriata, in 
all of which, however, the Patricians, the descendants of 
the families of the original settlers, held either the exclu- 
sive power or the balance of power. 

Quite naturally the later Kings showed tendencies of 
favoring the Plebeians, not only from a sense of justice, 
but, also, for the political purpose of gaining the support 
of the Plebeians against the Patricians. When this ten- 



THE EFFORT OF EUROPE 51 

dency became pronounced and persistent, the Patricians 
seized the first promising opportunity to abolish the King- 
ship and set up the RepubHc, i. e., Government by the Sen- 
ate and Comitise. Instead of the Senate and the Comitiae 
being now checks upon Government in behalf of Liberty 
they became the Government, the whole Government, and 
the unlimited Government for the moment. Two Consuls, 
chosen annually by the Comitia Centuriata, from among 
the Patrician order, and ratified as to their choice by the 
Senate and the Comitia Curiata, were the executive power 
and as such not only executed the law, but appointed all 
the other officials, or Magistrates, as the officials were 
termed in the Roman law, the Senate and the Comitiae 
making the law, in such form, however, and according to 
a procedure which made the Senate appear as the final 
sanction-giving body and the others as initiating or con- 
senting bodies. 

As I have said, the Patrician order dominated not only 
the Senate, but also the two Comitise, and the Plebeians 
very soon began to feel the necessity for a check upon 
Government by the Patrician order. The first recogni- 
tion of, and concession to, their demand for such a check 
was in the form of a law, the Lex Valeria of the year 509, 
the first year of the RepubHc, which provided that no 
Magistrate should execute a capital sentence upon a Roman 
citizen until the same should have been ratified by the 
Comitia Centuriata. 

But this was in two respects insufficient. First, the 
Patricians held the balance of power in the Comitia Cen- 
turiata, and, second, there was no power except that of the 
Patrician Consuls and their appointees to execute the law 
or the decisions of the Comitia. In order to remedy these 
defects the Plebeians took matters into their own hands. 



52 GOVERNMENT AND LIBERTY 

In the year 493, on return from a victorious campaign, the 
Plebeian soldiery, the stock and stuff of the Army, with- 
drew from the city and occupied Mons Sacer, some three 
or four miles away, and threatened to frame there their 
own state and Government, if their demands should be 
disregarded. Under this pressure the Patricians gave way 
and agreed to the creation of Tribunes of the Plebeians, 
with the power of protecting a citizen against the arbitrary 
acts of any Magistrate. This concession is known in Roman 
history as the Lex Sacrata. 

These Tribunes, at first only two in number and grad- 
ually increased during the next fifty years to ten, were not 
originally Magistrates or governmental officials. They 
simply interfered personally between a Magistrate and a 
citizen on application of the latter, and protected the citi- 
zen against the exercise of arbitrary power over him by a 
Magistrate; and by the vetus jusjurandum, the oath 
sworn between the Patrician class and the Plebeians in 
accordance with the Lex Sacrata, a curse of the Gods rested 
upon any violator of the person of a Tribune. 

It was entirely natural, however, that the Tribunes 
themselves should seek to organize in their support some 
more reliable force than the curse of the Gods, especially 
when the interpretation of the will of the Gods was in the 
hands of Pontiffs and Augurs appointed by the Patrician 
Consuls from the Patrician class. The Tribunes soon be- 
gan, therefore, to gather the Plebeians in assemblies, in 
what was termed in the Latin vernacular Conciliae Plebis, 
and out of these Conciliae Plebis was gradually developed 
the later powerful Comitia Tributa, with its power to limit 
the action of the Government in every direction, and to 
elect the Tribunes and vest them with the power of exe- 
cuting the decisions and resolutions of the Comitia Tributa. 



THE EFFORT OF EUROPE S3 

By the law called the Lex Publilia of the year 471 B. C, 
this new institution was legally recognized as a part of the 
Roman Constitution. 

There was still, however, a weak place in the Constitu- 
tion: Who should say when a Magistrate was acting arbi- 
trarily? If the Magistrate himself or the Senate or the 
Comitia Curiata or the Comitia Centuriata, where was the 
defense for the Plebeian? If the Tribune or the Comitia 
Tributa, where was the power of the Government ? It was 
evident that the fundamental principles of Individual Im- 
munity against governmental power must be agreed upon 
and reduced to a written form. Tribune Terentilius Arsa 
made this demand of the Government in the year 460 B, C. 
After ten years of struggle the Plebeians secured this, but 
were obliged to agree to having these fundamental prin- 
ciples formulated by ten Patricians instead of by ten Ple- 
beians as Arsa had demanded. These ten Patricians, 
called in Roman history the first Decemvirate, were chosen 
by the Comitia Centuriata to govern absolutely for one 
year and at the same time to produce this Bill of Rights, 
so to speak. Their work is the document known in Roman 
history as "The Twelve Tables." Quite curiously and in- 
terestingly the provisions of these Twelve Tables may be 
distinguished under three heads: first, a sphere of individual 
self-help, or absolute Immunity from governmental power; 
second, the provisions fixing due process of law; and, third, 
those securing the equal protection of the laws. All these 
provisions became part of the Constitution in the usual 
way, viz. : by vote of the Comitiae and the sanction of the 
Senate. 

Here, then, was the most complete solution of the problem 
of the reconciliation of Government and Liberty which the 
world had down to that time produced, viz.: a written 



54 GOVERNMENT AND LIBERTY 

Constitution of Individual Liberty and Immunity against 
governmental power and an organization, outside of the 
Government, of those to be protected in the enjoyment of 
such Liberty with the power in their own elected Tribunes 
to execute these provisions, according to their own inter- 
pretation, in behalf of the Individual against the Govern- 
ment. The danger, or perhaps we had better say the pros- 
pect, was now that the Tribunes would tie the Government 
down too tightly. The Patricians felt this and undertook 
to frustrate it by voting to continue the Decemvirate of 
Patricians, and brought on a struggle with the Plebeians 
for the restoration of the Consuls and the old order of Mag- 
istrates in which the Plebeians again won their contention. 
By this time, about 450 B. C, through conquest, exten- 
sion, and annexation, Rome had advanced its jurisdiction 
so far around the original city that there were, accord- 
ing to the Roman historians, some twenty-one tribes, in 
only four of which, the original ones, were there any con- 
siderable number of the Patrician order, if any at all. The 
seventeen newer tribes contained a vast Plebeian power, 
which now really held the fate of the Roman Republic in 
its hands. It is quite explicable that the Plebeians would 
not now be satisfied with the mere defense of their Civil 
Rights against the arbitrariness of Government, but would 
seek a full participation in Government itself. If they had 
been good political scientists they would have left their 
Comitia Tributa and their Tribunes independent of the 
responsibihties of Government, as constitutional protectors 
of Civil Liberty, and have sought to reform the Comitia 
Centuriata so as to have taken the balance of power therein 
from the Patricians, and would have demanded eligibility 
to all the offices. It is quite intelligible, however, that, in 
the absence of such scientific reasoning, and with the over- 



THE EFFORT OF EUROPE 55 

whelming volume of physical power present in the Comitia 
Tributa, the Plebeian leaders should have sought to make 
this body and their chosen Tribunes parts of the Govern- 
ment. 

The first success which they scored in this undertaking 
was to secure the recognition of the resolutions of their 
Comitia Tributa as being binding upon the Patricians as 
well as upon the Plebeians. The Patricians were able, 
however, at first to modify the effect of this by imposing 
the principle that the Senate must sanction the plebiscita, 
before they could be regarded as law. In other words, the 
Plebeians won, at first, only the right to initiate legislation 
through the Comitia Tributa. This came to pass about 
449 or 448 B. C. 

Then came the struggle over the eligibility of Plebeians 
for the Consulship. It was proposed first about the year 
445 B. C, by Tribune Caius Canuleius. The Patricians 
sidetracked, so to speak, this proposition by enacting in the 
bodies controlled by them, viz.: the Senate, the Comitia 
Curiata, and the Comitia Centuriata, a law that for the 
next six years there should be, instead of the two Consuls 
as the chief Magistrates, six Military Tribunes with con- 
sular power, and that Plebeians should be eligible to these 
offices. The Plebeians accepted this substitution with a 
very bad grace, and while securing the election of members 
of their order to the Consular Tribuneships still struggled 
on for the restoration of the Consulship and the eligibility 
of Plebeians to the high office. For more than seventy- 
five years this conflict was waged when finally by the Lex 
Licinia of the year 367 B. C, or thereabout, the Plebeian 
contention became the constitutional law of the Republic. 

Of course, with eligibility to the highest office conceded, 
that to all other Magistracies quickly followed. There re- 



56 GOVERNMENT AND LIBERTY 

mained now only the work of freeing the resolutions of the 
Comitia Tributa from the necessary sanction of the Senate 
in order to become law, and the Republic would be tri- 
umphantly democratized. This required another seventy- 
j&ve years of struggle. It was, however, bound to come, 
and after about 286 B. C. the plebiscita of the Comitia 
Tributa became law without the sanction of the Senate. 

The Comitia Tributa and its Tribunes were now, however, 
parts of the Government. They had abandoned their 
high constitutional position of independent defenders of 
Civil Liberty against the encroachments and arbitrariness 
of the Government, and now again, consequently, the indi- 
vidual citizen or subject had nothing except the benev- 
olence of Government to which to appeal for his protection. 
In the abandonment of its original position by the Co- 
mitia Tributa the ground was being prepared for Imperial- 
ism. With such a system of Government it was that 
Rome now entered upon the conquest of the world outside 
of Italy. For a hundred and twenty-five years after 265 
B. C. she was engaged chiefly in this work, which extended 
her confines from the Euphrates on the East to the Atlan- 
tic Ocean on the West, and from the Danube on the North 
to the African Desert on the South. 

The question which rises uppermost in the mind of 
every political scientist and practical statesman in con- 
templating this great fact is: How could Rome accompUsh 
this stupendous task under a form of Government which 
was hardly fitted for a municipality of one hundred thou- 
sand inhabitants? With this system of divided authority 
between Patrician Senate and Plebeian Comitia Tributa, 
with no organized body to settle differences between them, 
and of double-headed Executive, how could the Govern- 
ment manage the problems of diplomacy, conquest, and 



THE EFFORT OF EUROPE 57 

the control of allies and subjected peoples? The answer 
is that it simply did not do it. While no formal transforma- 
tions took place in the customary Constitution, the work- 
ing of the Government changed profoundly. In a word, 
the Senate became the whole Government practically, and 
the Magistrates and mihtary Commanders became its 
agents. This was inevitable under the conditions of war 
and conquest. There must be some one central undisputed 
authority from which all Government should radiate to 
meet and solve the problems to which this condition gave 
rise. It could not be the Comitia Tributa. This body 
was so numerous and irregular and had so little consensus 
of opinion, if it had any opinion at all in regard to such 
problems, that Government by it was out of the question. 
It had never come into existence for any such purpose and 
could never fulfil any such purpose. The other two Co- 
mitiae were controlled by the same class that composed the 
Senate, and, of course, this class would act through the 
body where it would find no obstacles. The Senate had 
been strengthened, too, after the admission of Plebeians 
to the Magistracies, by the custom of all Ex-Magistrates 
and their families being regarded as ennobled. This new 
nobility composed of the old Patrician families and this 
host of Ex-Magistrate families stood firmly behind the 
Senate and furnished the Senate with the best political 
and juristic talent which Rome afforded. The Senate now 
conducted the diplomacy and the relations with foreign 
Powers, made war and peace and all treaties, made the 
laws, managed the finances, and created and controlled a 
vast official service of Consuls, Proconsuls, Praetors, Pre- 
fects, and military Commanders throughout the immense 
territory whose populations now acknowledged the sway 
of Rome. 



S8 GOVERNMENT AND LIBERTY 

So long as the revel of world conquest went on the City 
of Rome grew in population and wealth almost without 
bounds or limits. The cheap food furnished by the Gov- 
ernment and spectacles of sport, play, and triumphal pro- 
cessions drew the free farmers of the rural districts into 
the city and left the lands which had been their homes and 
support either to waste or to be absorbed in latifundia and 
worked, if worked at all, by freedmen and slaves. The self- 
respect and public spirit of the Plebeians were lost in the 
search for pleasure and in the dazzling circus of metro- 
politan life. For the moment Liberty had been swallowed 
up by the almighty Government, which pillaged the world 
and held the minds of men bedrunken and besotted with 
the delights of oriental luxury and vice. 

But when this era closed and the enemies of Rome, who 
might be plundered at will, became the subjects of Rome, 
who must be allowed to live, the day of reckoning arrived. 
Men began to think whether the Liberties of the people 
and the Government of the vast state could be permanently 
left to this handful of Roman Nobles, however capable 
they may have proven themselves in the period of con- 
quest. The more intelligent Plebeians and many of the 
fairer-minded Nobles became dismayed at the ruin of the 
agricultural interests of Italy and the herding of the coun- 
try folk in the cities, and began the agitation for agrarian 
reforms. These propositions were, however, opposed by 
the Senate, and such opposition it was that precipitated 
again the constitutional question. 

Tiberius Graccus, elected Tribune in the year 133 B. C., 
undertook to overcome the opposition of the Senate to 
his agrarian reforms by reasserting the power of the 
Comitia Tributa to make law without the sanction of the 
Senate and the power of the Tribunes to check the arbi- 



THE EFFORT OF EUROPE 59 

trary rule of the Magistrates. His temerity cost him his 
life, but the word which he had spoken could not be re- 
called. Ten years later his brother Gaius revived the claims 
put forth by him and renewed the struggle, and from this 
moment onward the popular party formed itself around 
the Comitia Tributa and its Tribunes, and announced its 
determination of restoring this assembly and its chosen 
leaders to their predominant place in the Constitution. 
Gaius, like his brother Tiberius, fell by the dagger of the 
assassin, but ten years later the Plebeians found a still 
more powerful leader in Gaius Marius, a true son of the 
people, a great soldier, and an able administrator of affairs. 
The Plebeians succeeded in electing Marius to six or seven 
terms as Consul, and while they thus demoralized the sys- 
tem of elective office in the Republic, they did not succeed 
either with Marius or with the great Tribune, Marcus 
Livias Drusus, in triumphing decidedly over the Senate. 

By the estabhshment of the Dictatorship of Sulla, in 
the year 81 B. C, and the suspension of all civil constitu- 
tional Government in behalf of a military autocracy, even 
though this was regarded as a temporary expedient, the 
Senate, on its side, dealt the RepubHc a blow which shat- 
tered its Constitution into fragments. 

The only question now left was whether the Dictator 
would stand for, and as the representative of, the Senate 
and the municipality of Rome or for the Plebeians and 
the vast Empire which had been conquered and annexed. 
For nine or ten years, only, the Senate prolonged through 
this means its own ascendancy, when another successful 
soldier, Pompey, lent the aid of the legions under his com- 
mand to restore the power of the Tribunes and the Comitia 
Tributa. With his troops and those under the com- 
mand of his wealthy friend, Crassus, encamped just out- 



6o GOVERNMENT AND LIBERTY 

side the city, he forced the election of himself and Crassus 
as Consuls and gave the direction for the development of 
the military Dictatorship toward the side of the Plebeians. 
The coalition of Pompey and Crassus with Caesar in the 
year 60 B. C. brought at last the personality to the front 
who was destined to accomplish this result by his military 
triumphs in the provinces, followed by the march of his 
victorious and devoted legions to Rome and the subjec- 
tion of the Senate to his will by military force. 

It has been doubted by historians that Csesar had in 
mind from the beginning the complete transformation of 
the Roman Constitution. He could hardly have proceeded 
with more precision and directness and consecutiveness 
had he followed a plan long and carefully matured. His 
elements of strength were his legions and the populace of 
Rome. He secured through the populace in the Comitias 
the permanent Dictatorship, a form of unlimited govern- 
mental power already known to the Constitution in the 
Sullan precedent. Upon the basis of this he reconstructed 
the Government outside of the City of Rome in Italy and 
especially in the provinces through his own agents, ap- 
pointed by himself, amenable to himself, and subject to 
dismissal by himself. With this he put an end to all pro- 
consular independence in the provinces and gave the vast 
Empire a centralized Government of the most effective 
sort. In Rome itself he allowed the old constitutional 
bodies to remain, but he secured from the Comitias his 
election with a permanent term, as both Consul, Tribune, 
and Praetor, and took and held the ground that the Senate 
and Comitia^ were only the Councils of the Consul and had 
no lawmaking power. They could only approve or dis- 
approve when their counsel should be solicited by the 
Consul. 



THE EFFORT OF EUROPE 6i 

Such, in brief, was the Imperial system which Caesar con- 
stituted and established, and in it there was no place for 
the constitutional Liberty of the Individual or of any in- 
stitution charged with its defense. Liberty had been again 
overwhelmed by Government and the great problem of 
the reconciliation of the two seemed for the moment to 
have disappeared again from the consciousness of men. 

For jBlvc years this terrible despotism continued, terrible 
more in theory, indeed, than in fact, for Caesar used his vast 
powers considerately, beneficently, and benevolently on the 
whole, when, on the 15th of March, 44 B. C, the partisans 
of Liberty sought to restore the old order by means of the 
assassin's dagger, and then it became indisputably mani- 
fest that the life had perished as completely from the old 
order as from the corpse which lay bleeding with three 
and twenty gaping wounds at the foot of Pompey's statue 
in the Senate Chamber. Thirteen terrible years of an- 
archy, with its incidents of pillage, bloodshed, and misery 
followed, and men became convinced that the Imperial 
system inaugurated by Caesar was the only recourse, that 
in the course of events it had come to stay. 

The triumph of Octavian, the grandnephew and heir of 
Caesar, over Anthony in the battle at Actium in September 
of 31 B. C, marks the close of the period of confusion and 
the virtual restoration of the Cassaristic regime. Octavian 
had had the advantage of his granduncle's experience, 
and while his rule seemed to be universally approved and 
desired, he proceeded with far more discretion and pre- 
served with far more care and consideration the constitu- 
tional forms of the RepubHc. He would not allow himself 
to be chosen Dictator. He would not even allow himself 
to be chosen Consul, since this might have emphasized too 
strongly the Patrician element in his blood. He accepted 



62 GOVERNMENT AND LIBERTY 

the office of General Proconsul in all the provinces in which 
military power was necessary and of Tribune in the City 
of Rome from the first, i. e., from the year 27 B. C, and 
fifteen years later he accepted the office of the Pontifex 
Maximus. Of course, he received the commandership-in- 
chief of the armed forces, with the power to raise, equip, 
and dispose of the same in the waging of war or the main- 
tenance of order, and was regarded as the director of the 
diplomacy of the state and its relations to foreign Powers. 
The power of the tribuneship was conferred upon him for 
Kfe, and the proconsular power for ten years and renewed 
every five or ten years thereafter. The title conferred upon 
him by the Senate was Augustus, and he was generally 
denominated "The Prince," Princeps. He was a member 
of the Senate and sat between the Consuls. 

Furnished with such pregnant prerogatives, Octavian 
gave the original form to the Roman Imperial system, 
under the protection of the titles and the customary proce- 
dure of the Republic. Apparently Octavian was only the 
Chief Magistrate of the Republic. The Senate and Co- 
mitias were still extant and could enact laws, but as Pontifex 
Maximus he could prevent their assembly or their action 
by declaring the moment inauspicious, and as Tribune he 
could declare their acts null as contrary to the rights or 
welfare of the people. The Consuls were still there, but 
his permanent and general proconsular powers cut them 
off entirely from the Government of the provinces which 
were under military regime, and that meant almost all of 
them, and his military prerogative of disposing of the armed 
forces enabled him to send them lawfully into the non- 
military provinces and exercise a superior supervision over 
the Governors appointed by the Senate and Comitiae there. 
His power as Tribune enabled him to initiate law in either 



THE EFFORT OF EUROPE 63 

the Senate or the Comiti^, and to nominate Magistrates, 
and if his propositions were not adopted, he could with his 
other powers rule without them. 

Under such conditions and in possession of such limitless 
prerogatives reaching in every direction it was natural, 
almost logically necessary, that the Principate of Octavian 
should develop into the Imperium of Diocletian, i. e., into 
the system the two fundamental principles of which were 
the choice of the Imperator by the soldiery for a life term 
and his absolutely unlimited rule everywhere and over 
every subject. It is only to be wondered at that this de- 
velopment did not proceed more rapidly. Two hundred 
and fifty years is a long period in any part of the world's 
history, and the perdurance, in name at least, of the system 
which Octavian founded through so long a period is strong 
evidence of the tenacity of the principles of the Roman 
Republic and of the political capacity of the people who 
created and administered it. 

In the system of the Empire as finally adjusted by Dio- 
cletian there was no place whatever for the constitutional 
Liberty of the Individual. The tribunicia potestas held 
by Octavian and nominally exercised by him in defense of 
the individual citizen against the action of the Senate and 
the Magistrates was now of no consequence, since the Em- 
peror was both the lawgiver and Chief Magistrate, from 
whom all other Magistrates derived office, power, and 
emolument. The only hope of the citizen was again in the 
benevolence of Government. The great problem of the 
reconciliation of Government and Liberty had again ap- 
parently fallen into abeyance. The Government had be- 
come sovereign and citizens had become only subjects. 

But, as usual, when the darkness was apparently deep- 
est the dawn began its approach. In the last half of the 



64 GOVERNMENT AND LIBERTY 

first century it became known, or rather rumored, in Rome 
that a new kind of religious association existed in the city. 
No one seemed to know exactly where it had its habitation 
or by what name it was designated. It was commonly 
supposed that it was some sort of a Jewish sect, since it 
was said to have come from the East. The authorities 
took, at first, no notice of it whatever. The principle of 
the Roman Imperial system in regard to religion was com- 
plete toleration. The Roman Empire had, so to speak, a 
state reUgion, but it was polytheism, that is, it accepted 
for each people brought under its sway the existing religion 
of that people, placed its divinities in the Roman Pantheon, 
made the existing Emperor its chief priest, and imposed 
upon its votaries the worship of the apotheosized Emperors. 
In this way the Imperial Government not only avoided all 
religious controversy with its conquered subjects, but actu- 
ally turned the religion of each conquered people, under the 
papacy of the Emperor, into an instrument of control, 
even of oppression, over them. 

The Pagan religions found little or no difficulty in accom- 
modating themselves to the conditions of their toleration 
by the Imperial Government, viz. : the papacy of the exist- 
ing Emperor and the worship of the apotheosized Emperors, 
since these religions were themselves polytheistic, and were 
already conducted by an organized priesthood, which exer- 
cised much of what we now consider civil power, as well as 
spiritual functions. Very soon, however, it began to be 
bruited about in the gossiping places of Rome that the 
new doctrine and sect were something quite different from 
any religion and any body of votaries with which the 
Roman Government had, as yet, come into contact. It 
was said that they had no stated time nor fixed place for 
public worship, but that they met secretly in unknown 



THE EFFORT OF EUROPE 65 

places; that they had no priests; that they would not 
worship among their Gods the apotheosized Emperors, 
and that they would not recognize the existing Emperor as 
their chief priest. Here were plenty of points of conflict. 
The secret meetings were in contravention of the police 
regulations of the city; the refusal or the omission of 
worship of the apotheosized Emperors was a sort of lese- 
majeste; and the rejection or non-recognition of the exist- 
ing Emperor as chief priest was rebellion. The Imperial 
Goverrmcient would be obliged, sooner or later, to take a 
stand about these things. It must either punish their 
perpetrators until they desisted, or modify its own con- 
stitutional customs, or else helplessly suffer successful 
defiance. 

While the Emperors hesitated in the presence of these 
alternatives, perhaps I should say while they were becom- 
ing distinctly conscious of them, the sect spread not only 
throughout the city and the Italian peninsula, but through- 
out many other parts of the Empire. The fact was that, 
entirely apart from what we may call the theological side 
of the Christian doctrine, the new religion contained a 
social and then a quasi-political side, which was a necessity 
to the subjects of the rapidly developing Imperial despotism, 
in order to regain the Individual Liberty and worth which, 
in the transition from the system of the Republic to that 
of the Empire, had been lost. The dignity of womanhood, 
the sanctity of marriage and the home, the care of the 
sick and the poor, the equality and brotherhood of men 
before the divine Judge and Father of all, and the freedom 
of behef and opinion must be revived where they had be- 
fore existed, and created where they had not, in order that 
the decay of the Roman world, which had already set in, 
should be arrested and civilization rejuvenated. 



66 GOVERNMENT AND LIBERTY 

The Christian communities throughout the Empire seem 
to have been originally established on the principle of local 
independence, but with marvellous rapidity, considering 
the conditions of the age, they entered into wide organiza- 
tion upon the basis, originally, of a real democratic represen- 
tation. In the absence of such means as exist in modern 
times for the development of a consensus of opinion, this 
organization was a necessity for concert of thought and 
action, but it created a volume of organized power, which 
could not fail to attract the attention of the Statesmen- 
Emperors. 

Trajan, Marcus Aurelius, Septimius Severus, Decius, 
and Diocletian, Rome's greatest Emperors, were the real 
persecutors, or perhaps it would be more correct to say 
prosecutors, in principle, of the Christian Church. Trajan, 
Emperor from 98 to 117 A. D., evidently felt that law and 
policy required of him an attitude toward the Christian 
societies which his own personal disposition disapproved. 
He commanded his subordinate officials not to search for 
the Christians, but when their existence could not be 
blinked at to execute the law upon them. The prosecu- 
tions instituted by Trajan's Government resulted in a free 
advertisement, more than anything else, of the superior 
moral life and principles of the Christians, and for nearly 
fifty years more they developed their organization with but 
little hindrance from the Government. Upon the acces- 
sion of Marcus Aurelius in 161 A. D., things had gone so 
far that the Government could no longer ignore the power- 
ful institution which was rapidly gathering into itself the 
best administrative talent as well as the best character of 
the Empire, and was developing an ethical consensus which 
threatened the foundations of the Imperial system. This 
philosophic ruler employed the whole power of his Govern- 



THE EFFORT OF EUROPE 67 

ment to extirpate the institution root and branch. Through 
his entire reign from 161 to 180 A. D., and also through the 
reign of Septimius Severus, 193 to 211 A. D., the Imperial 
Government followed up its prosecutions. But all in vain. 
Whether the Christian Church was protected by divine 
power or not, its moral system was the demand of human 
development. Its existence was more and more recognized 
as a necessity to balance and limit the arbitrary despotism 
of the Imperial Government. Forty years more of com- 
parative rest followed the useless efforts of the Govern- 
ment of Septimius Severus, when another conscientious 
and zealous Emperor, Decius, mounted the throne and re- 
vived the Christian persecutions, 249 A. D. His were the 
first which extended all over the Empire at the same time. 
They were followed up under the form of requiring all sub- 
jects to profess one of the Pagan religions recognized by the 
Goverimient. The movement was vigorous and even cruel, 
but it was again in vain. The most intelligent and sincere 
in all classes of the society throughout the whole Empire 
had come to understand that the Christian Church was the 
institution with which to combat the despotism and bar- 
barism of the Imperial system. 

I do not think that anything other than this general 
conviction can explain the marvellous organization of the 
Church throughout the Empire from, and after, the year 
250 A. D. It excelled that of the Imperial Government 
itself in its compactness as well as in its volume of demo- 
cratic power. It was also substantially a imit in its moral 
code, which counted far more than its theology in its strug- 
gle against the arbitrary Government and in its bid for 
the affections of the people. In the forty years of com- 
parative repose between the Decian and the Diocletian 
persecutions, the Church historians remark the vast in- 



68 GOVERNMENT AND LIBERTY 

crease in numbers and influence of the Christian Church, 
and at the same time a decHne of earnestness and zeal 
among the Christians and a certain more pronounced 
conformity on their part to the way of the world. These 
historians do not attempt to explain this. Perhaps they 
have not understood its real meaning. The poHtical scien- 
tist sees in it, however, the rapid influx of the higher classes 
of the society into the Church, their accession to the higher 
offices of the Church and the organization of the Church 
as a quasi-civil power, as an institution in which the better 
intellect and higher character of the Empire, excluded from 
the offices of the Imperial Government, could render public 
service and contribute to the advancement of general civi- 
lization. It was simply religious enthusiasm giving way 
to the efforts for moral advancement and for an improve- 
ment in civil life. The political scientist cannot regard 
this change as indicating any decline in Christian virtue. 
He sees in it only the principles of Christian morality com- 
ing to the front and transforming the actual world into 
their likeness. 

The really great Emperor Diocletian, the Emperor who 
finally transformed completely the more moderate system 
founded by Octavian, the first Augustus Caesar, into the 
completely unlimited and despotic Imperium, made one 
last effort to rid the Government of this newly arising curb 
upon its authority, of this new public institution which was 
disseminating an ethical system throughout the Empire 
which threatened on every side the foundations of the 
Imperial system, and which had already become so com- 
pactly and intelligently organized and administered as to 
outrival the Imperial official system itself. The persecu- 
tions which he ordained were general throughout the Em- 
pire, long-continued, thoroughgoing, vigorous, and cruel. 



THE EFFORT OF EUROPE 69 

But they availed only to strengthen the Church and weaken 
the Imperial Government. 

The really exhausted and discredited Government began 
to feel that it must take steps to forestall revolution. It 
wisely decided to yield to the inevitable as gracefully as 
possible. It issued the three Edicts of Toleration of the 
years 311, 312, and 313 A. D., and the struggle was finally 
ended. The edicts 312 and 313 were issued by Constantine 
who, after ten years of reflection, resolved to solve the 
problem of the relation of the Christian Church to the 
Imperial Government by making it the State Church of 
the Empire. The Emperor summoned the Bishops of the 
Church throughout the Empire into conclave at Nicea 
and settled the creed which was to be the test of member- 
ship in the State Church and then confirmed this Church 
in its hierarchic organization and conferred upon it cer- 
tain most important powers. 

It does not pertain to the subject I am treating to ex- 
plain the Nicene creed nor to enumerate all of the rights 
and privileges conferred upon this new State Church. Of 
course, it became a public corporation with the functions 
naturally attached to such and it displaced the Pagan re- 
ligions and appropriated the temples and other property 
belonging to such religions. The two powers conferred 
upon the Christian Church of the Nicene faith which have 
interest for us in following the efforts of the world to solve 
the problem of Government in its relation to Liberty are 
the so-called power of intercession, i. e., the right of any 
Church official to intervene between the Government and 
the Individual and protect the latter against the arbitrari- 
ness of the Government, involving the power to determine 
whether the proposed acts of the governmental official were 
or were not arbitrary; and the right of asylum of all Church 



70 GOVERNMENT AND LIBERTY 

sanctuaries against any invasion by the Imperial oflEicials. 
Here was virtually a revival of the original powers of the 
Tribune of the people. Here was a limit upon the powers 
of the Government far more effective than the Tribunes 
had ever been able to exercise. It has been calculated that 
the number of Christian Bishops in the Empire at this 
juncture was approaching two thousand and the number 
of Christian sanctuaries was much larger. With such 
statistics in mind, it is very easy to see how the power of 
intercession now conferred upon the Church officials and 
the right of asylum accorded the Christian sanctuaries 
were a most decided limitation in principle and in fact upon 
the powers of the Imperial Government, and in their appli- 
cation were sustained by an institution which was now 
the most powerful organization in the whole Empire not 
excepting the Imperial Government itself. The protection 
of the Individual against the arbitrariness of the Govern- 
ment had been in fact exercised by the Church officials 
before the Christian Church had been made the State 
Church, but the possession of such powers by them was not 
till then recognized by the Imperial Government and they 
were exercised by them only in behalf of Christians. Now, 
however, after establishment, all subjects of the Emperor 
might be regarded as Christians and the rights of inter- 
cession and asylum were, we might say, constitutional 
prerogatives of the Church, to be exercised by each Church 
official upon his own motion. With such checks as these 
upon governmental power, the rapidly advancing despotism 
of the Diocletian Imperial system was turned back and a 
domain of Individual Liberty was vindicated and pro- 
tected. It is true that it was still unclear what the domain 
comprised in principle, since it was left to the Church or 
rather to the individual officials of the Church to determine 



THE EFFORT OF EUROPE 71 

when and to what extent this protection should be ac- 
corded in each case. Moreover, there was also the danger 
that the established Church might feel itself to be a part 
of the Government and might through its hierarchy of 
officials sustain the Government against the people, and be 
tempted to exercise force, instead of influence and suasion 
over the people, i. e., to act itself rather as Government 
than as religious organization, and there was also the fact 
that an estabHshed Church is by virtue of its establishment 
a denial of Individual Independence in regard to religion. 
These dangers were all realized later, but during the first 
centuries after the estabUshment they remained in abey- 
ance, and the Church, through its compact organization, 
arrived at a consensus of opinion concerning the content 
of the sphere of Individual Immunity against governmental 
arbitrariness and defended the same mightily and with 
general success. 

In addition to all this, we must take account of the facts 
that the Church was now able to bring such pressure upon 
what we may caU Imperial legislation as to give it a Chris- 
tian instead of a Pagan quality and to hold the Emperor 
under its control by forcing upon him the conviction that 
it could give the moral support which would make his 
throne stable, and inspire the loyalty which would sustain 
his rule. All these influences soon manifested themselves 
in the new attitude of the Emperors toward their subjects 
and in the transformation of the laws in the codes of Theo- 
dosius and Justinian. And so it is not too much to say, 
in fact we must in all truth say, that the Christian Church, 
especially under its Western hierarchic organization, i. e., 
under the Patriarchate of Rome, rescued the individual 
subjects of the Empire from the arbitrary despotism of the 
Cffisars, rescued the Empire from the decay of its own 



72 GOVERNMENT AND LIBERTY 

suicidal course, and rescued Europe from the fate of Asia. 
The Constantinian reforms preserved the Empire for cen- 
turies to come and the Christian Church, under the hier- 
archic organization of the Patriarchate of Rome, constituted 
a power, both rehgious and civil, upon which the barbaric 
onslaughts of the Middle Ages would break in vain. 



CHAPTER III 

GERMANIA 

It is usually claimed by political scientists and historians 
that the student of Liberty must seek its origin in the for- 
ests of Germania. Their chief authority for this assertion 
is the Roman historian, publicist and statesman, Publius 
Cornelius Tacitus, who was born somewhere about the 
year 54 A. D., and died about 118 A. D. In his work en- 
titled the Germania, or De Situ ac Populis Germanice, he 
describes and eulogizes the political institutions of the peo- 
ple of Germania and represents them as models of civil 
and political freedom. It must be remembered that Tac- 
itus Hved and wrote in the period of the reign of such 
Roman Emperors as Nero, Domitian, and Trajan, that is, 
at a time when every vestige of real Liberty had departed 
from the Roman institutions, and that, consequently, the 
contrast furnished by the primitive natural German insti- 
tutions was very striking, so striking as, perhaps, to have 
affected his critical judgment somewhat as a scientific pub- 
licist. Every classical scholar knows that Tacitus is rather 
hard reading and that his terse sentences are capable of 
somewhat differing interpretations. To me the most satis- 
factory interpreter of the great Roman author, from the 
point of view of political science, is the late celebrated 
German political historian, Georg Waitz, whose monu- 
mental work, Deutsche Verfassungsgeschichte, is the high- 
est authority on the subject known to the learned world. 
It was with him that I read the Germania of Tacitus in 

73 



74 GOVERNMENT AND LIBERTY 

my student days and in the interpretation which I shall 
offer of the statements of Tacitus I shall always consult 
his renderings of the original text. 

According to the representation of Tacitus, the Germans 
of the year loo A. D., we will say, were an agricultural and 
pastoral people, living in small villages, cultivating a certain 
portion of the land, using another portion as pasture, the re- 
mainder being forest or swamp or desert. The arable land 
had become private property, but could be worked only in 
conformity to an ordinance of the community requiring a 
certain rotation of crops and fallow-lying. The pasture and 
the forest were, however, property of the community in which 
each owner of arable land had a right of use. The owner- 
ship of a bit of arable land in a community together with 
the right of use in the common pasture and forest was the 
basis of political citizenship. The society — if we may give 
so scientific a name to the population in that rude age — 
was distinguished by T acitus into four classes, viz. : Nobles, 
common freeman, dependants, and slaves. There were 
not many Nobles, and the dependants and slaves did not 
constitute the majority of all persons. The stock and stuff 
of the state were the common freemen. They were those 
members of the community who were arms-bearing and who 
held land by free tenure, i. e., not from any other person. 
The Nobles were higher than freemen only in the respect 
that they held generally larger estates. Their nobility 
was little, if any, more than notability, a higher respecta- 
bility. They probably originated by the union of adjacent 
smaller communities into the larger tribal communities, 
which existed in the time of Tacitus. The officials of these 
smaller communities, in giving way to the officials of the 
larger unions, preserved for themselves and their descen- 
dants the respectability of mediatized rulers, and while the 



THE EFFORT OF EUROPE 75 

primitive German politics did not admit of the hereditary 
descent of office, it did not prohibit such devolution of 
honor and high social standing. As the richer class they 
had naturally more dependants and slaves, but the com- 
mon freemen also frequently had dependants and slaves — 
oftener, one would fancy, slaves than dependants. De- 
pendants were what we would call leaseholders, persons who 
worked land on their own account, which land belonged, 
however, to some other person. The common freeman, as 
a rule, did not have enough land to let any of it. He, with 
the members of his family and sometimes with a slave or 
two, could cultivate aU the land he possessed. There must 
have been a considerable number of these leaseholders. 
When one entire community was overcome in battle by 
another, the members of this subjected community usually 
fell into this dependent relation to the members of the 
conquering community. When, on the other hand, cap- 
tives were taken, singly or in small numbers, they were 
generally made slaves and became dependants then only 
by emancipation. The difference between the dependant 
and slave seems to have consisted chiefly in the facts that 
the slave could be bought and sold as a chattel and had 
no standing in court, while the dependant could at the 
most be transferred from one landlord to another with the 
land which he leased, or, at least, tilled, and had a standing 
in court. Neither was a citizen, neither had any political 
rights, and, generally, neither could bear arms, except in 
periods of migration and of desperate defense, when the 
dependants were, in lesser or greater numbers, admitted 
or drawn into the armed force. Later on, when the Ducal 
and Royal power and authority were developed, the Dukes 
and Kings frequently took members of the dependent class 
into their service, both military and civil, which resulted 



76 GOVERNMENT AND LIBERTY 

in giving such persons a higher social standing and in ele- 
vating the class to which they belonged. 

Upon the basis of such social relations were founded the 
political and governmental institutions. First and most 
fundamental, and the source of all other authority, was the 
tribal Assembly composed of all the freemen and Nobles, 
i. e., the arms-bearing landowners, acting under the presi- 
dency of a chosen Prince, or moderator. The tribe was the 
state, the sovereign power, as we now say, and the tribal 
Assembly was the organization through which the sover- 
eignty was exercised. There was, consequently, no limi- 
tation upon its powers. Had it acted only as a constitu- 
tional convention, so to speak, constructing the organs of 
Government, vesting powers in them and limiting their 
extent, here would have been something manifesting a 
high stage of political thought. The tribal Assembly was, 
however, ordinary Legislature and, in many respects, high- 
est administrative organ. For example, it declared war, 
made peace, concluded treaties, and in many cases acted 
as the supreme judicial body. It was thus a part and the 
most important part of the ordinary Government, and, as 
Goverrmient, its powers were entirely unlimited, i. e., it was 
only self-limited. In lowest instance stood the Assembly 
of the village, composed of all the freeholders of the village, 
acting under the presidency of a chosen officer or moderator. 
Its functions were mostly of the nature of police Govern- 
ment and economic administration, chiefly in regard to 
the system of land divisions and agriculture. Both the 
tribe and the village were, so to speak, natural organiza- 
tions and were the product of historic growth. Between 
the two was the more artificial division, entitled the hun- 
dred, with its Assembly composed of all the arms-bearing 
landowners of the division under the presidency of a 



THE EFFORT OF EUROPE 77 

Prince chosen in and by the Assembly of the tribe, one for 
each of the hundreds which composed the tribe or rather 
into which the tribe was divided. This Assembly was 
more a judicial body than anything else and was, therefore, 
more constantly in session. Its President, the Prince, or 
Princeps, as Tacitus called him, was the one permanent 
executive officer of the primitive Germanic Constitution. 
As I have said, he was elected in and by the tribal Assem- 
bly, and he held for Ufe usually. He was authorized to 
keep a body of retainers, not only for the protection of his 
person and the maintenance of the dignity of his office, 
but, also, for executing the decisions of the hundred Assem- 
bly. His office was permanent and continuous while that 
of the President of the tribal Assembly lasted only during 
the sessions of the Assembly. In the sessions of the tribal 
Assembly these Princes of the hundreds acted as a sort of 
general committee for the preparation of the business 
which was presented to the Assembly, and it was they 
who usually executed, each in his own hundred, the reso- 
lutions of this Assembly as well as those of the hundred 
Assembly, since they alone in the absence of a Prince of 
the tribe, which was the usual situation, possessed the or- 
ganization for the enforcement of the law, viz.: the band 
of retainers. These bodies were recruited by them out of 
every class of the society except the slaves. Generally, 
however, it was the young scions of the nobility which 
composed them. The common freemen and their sons 
and the leaseholders were generally occupied in tilling the 
soil. The estates of the Nobles, on the other hand, were 
usually tilled by slaves or leased to dependants, and their 
sons were free to follow war or the chase, or take up service 
with the Princes. When the Prince had need of force to 
execute the law, they were there to do his bidding. When 



78 GOVERNMENT AND LIBERTY 

he chose to go on adventure, they were his followers. And 
when the entire tribe engaged in war or migration, they 
formed, so to speak, the staff of the several Princes, as 
military Commanders. When not engaged in any of these 
pursuits they, as the table companions of the Prince, were 
eating and drinking and carousing with him. 

Such were the usual political and governmental institu- 
tions of the primitive German state. Tacitus does men- 
tion, however, tribes which had a Prince of the tribe as 
well as Princes of the hundred divisions within the tribe. 
He also mentions unions of tribes which had Kings, such 
as the Goths, the Marcomanni, the Quadi, and the Herman- 
duri. From what he says it is evident that where the 
tribe had a Prince, that is, a single Chief, elected by the 
tribal Assembly and holding for life, such tribe was an older 
development than that attained by most of the tribes, 
that is, it was a tribe in which the local spirit had been in 
higher degree overcome. In other words, such a tribe was 
passing over from the confederate to the federal stage in 
its development. Such a Prince was not distinguishable, 
however, from the Princes of the hundreds within his 
tribe, either in tenure or term of office. The subjects of 
his administration were different from those coming under 
their administration, but his authority, as theirs, was 
derived from the tribal Assembly, which elected both him 
and them; and the means of executing the law were the 
same in both cases, viz.: the body of retainers. This or- 
ganization around the Prince of the tribe may have been 
larger and possessed of more dignity in the eyes of the 
people, but it was composed in the same way and of prac- 
tically the same material, and its methods and activities 
were the same as that around the Prince of the hundred. 

On the other hand, in those tribes or rather unions of 



THE EFFORT OF EUROPE 79 

tribes which had Kings a new conception of power was 
introduced, viz.: an element of independent authority be- 
longing to a particvdar family, the active member of which 
was still designated in the most general Assembly of the 
tribe or union of tribes. In other words, the principle of 
hereditary right to the Chieftaincy seems to have mani- 
fested itself among certain of the tribes or unions. This 
must have been a development brought about by a long 
period of war or migration or both, and the Kingly oflBice 
and power must have gradually developed out of the mili- 
tary Chieftaincy, as I shall describe later in the case of the 
Salian Franks. It is hardly conceivable that any tribal 
Assembly of the primitive German state would have, con- 
sciously, intentionally, and at a given moment, elected a 
Chief to hold office by hereditary right. 

From a critical survey of these details we are forced to 
conclude that what we are deaHng with in the primitive 
Germanic pohtics is a broadly aristocratic Republic with 
an unlimited legislative Government. The heads of fam- 
ilies owning land and bearing arms, organized in their As- 
semblies of the village, the hundred and the tribe are, with 
their chosen agents, the Government in each case. Assum- 
ing that the dependants and slaves numbered about one- 
half of the population and that each family was composed, 
on the average, of five members, the number of those par- 
ticipating in political power would have been not over 
one-tenth of the entire population. Granting that each 
head of a family represented, on natural principle, the 
members of his family and acted for their best interests, 
there would still have remained at least half of the popu- 
lation entirely outside the bounds of any kind of represen- 
tation. 

This is a vital point in the sort of governmental system 



8o GOVERNMENT AND LIBERTY 

which we are now examining. The primitive German 
state secured Individual Liberty only by participation of 
the Individual in governmental power. This is one way 
indeed to secure such Liberty, but it is a crude way and 
an ineffectual way. It is crude because it does not separate, 
by fundamental constitutional principle, the realm of In- 
dividual Liberty from that of governmental policy, nor 
does it provide any impartial non-political means for safe- 
guarding such a domain. And it is ineffectual, because by 
the manner of its action it protects only the majority of 
those participating in the exercise of governmental power. 
The Individual Liberty of those composing the minority 
of the participants in Government, as well as of all those 
who are not so participant at all, will not be conserved by 
any such means and methods. Now, the real test of the 
real existence of Individual Liberty in any political and 
governmental system is whether that system presents a 
fairly well-defined realm of Individual Liberty, of individual 
exemption from governmental power, and provides the 
means for the protection of that realm, as well against en- 
croachment by the Government as against encroachment 
from every other quarter. The primitive German system 
made no such provisions. It simply trusted everything 
to the benevolent disposition of the majority, in each case, 
of the participants in the exercise of governmental power. 
The fact that these participants in governmental power 
were the landowning, arms-bearing adult males did not 
render unlimited Government by a majority of these one 
whit less despotic in principle than when exercised by the 
Roman Emperor, 

I do not see, therefore, that the primitive German politi- 
cal and governmental system at all solved the great prob- 
lem of the reconciliation of Government with Liberty. I 



THE EFFORT OF EUROPE 8i 

do not even see that the primitive German system made 
any provisions worth the mention for distinguishing Indi- 
vidual Civil Liberty from participation in political power 
or for securing the same against encroachment by the ordi- 
nary political authorities. It seems to me that we have 
here again a poHtical and governmental system which, in 
principle, sacrifices Individual Civil Liberty to Govern- 
ment, no matter how lightly, considerately and benevo- 
lently Government might exercise its powers. I think we 
shall have to travel much further down the ages to find 
the kind of Liberty for which we are looking and to find 
the means for conserving it against governmental en- 
croachment without producing anarchic or demoralizing or 
disorganizing results. 



CHAPTER IV 

THE FRANKISH KINGDOM 

As I have already indicated, it was the custom of the 
German tribes in periods of war and migration to suspend 
their Goverrmient by the Assemblies and its elected agents 
and to select a military Chieftain for the time of such 
movements and vest in him unlimited power. At first their 
terms were of shorter duration and the suspension of the 
ordinary Constitution did not last so long as to allow the 
powers of the military Chief to become permanent or quasi- 
permanent through age. At the end of the military enter- 
prise, the Chief, the Leader, Dux, Herzog, Duke, must 
relinquish his power and office on pain of grievous punish- 
ment should he fail to do so. Arminius, Duke of the Hes- 
sians, lost his life at the hands of his own followers for at- 
tempting to hold on to his office and powers after the close 
of a successful campaign. But when the migrations of 
the tribes and confederations of tribes into the territory of 
the Roman Empire lasted through decades and centuries 
and when the cessation of the migratory movements was 
gradual and extended through long and indefinite periods, 
the conditions for a return to the customary Goverrmient 
by the Assemblies were not again so definitely and de- 
cidedly reattained as to bring about the prompt abdication 
of the military Chieftain, the Duke. In other words, the 
long period of the migrations, from the second to the sixth 
century, favored the permanency of the unlimited Govern- 
ment of the Duke and the transmission of the office to his 

82 



THE EFFORT OF EUROPE 83 

own descendants or at least family relations, since they 
would be instructed by him in the discipline and experi- 
ences of the command and would inherit from him his 
arms and material of a military nature. In still other 
words, the continued condition of migration, war, or hostil- 
ities favored the development of the Ducal office and power 
into the Kingly, the system of the hereditary Chieftaincy 
in peace as well as war. 

Already in the early part of the fifth century the tribes 
occupying the territory along the east bank of the lower 
Rhine and reaching, at points, over to the west bank, the 
Salian Franks, had formed a confederation under the mili- 
tary Chieftaincy of one Clojo, and as Clojo's son Merovius 
followed him in the command, and Merovius's son Childeric 
followed him, and Childeric's son Clovis followed him, we 
may say that by 486 A. D. the Royal system of Govern- 
ment was several stages advanced in its development and 
was rapidly displacing the primitive Government by the 
Assemblies of the freeholders. Still there was always the 
danger to the house of Merovius that, when a condition 
of permanent settlement should be finally attained, the 
demand, and then the movement, would be made for the 
restoration of the ancient Republican Constitution. No 
one recognized this danger more clearly than the astute 
Clovis, who, in 481, when only fifteen years of age, was, by 
the death of his father Childeric, compelled to face the 
problem of making good his right of succession to the 
office and power which his father had held. Consciously 
or unconsciously, Clovis struck out at once in a direction, 
I will not call it policy, which was best calculated not only 
to secure his own inheritance of his father's position, but 
to establish so firmly the right of his house to the govern- 
mental supremacy over his subjects, that it was not again 



84 GOVERNMENT AND LIBERTY 

questioned, until the decay of the Merwing family itself 
caused its own displacement. 

Upon his accession, in 481, his Franks had advanced 
toward the Southwest as far as the river Somme. They 
had not to this time disputed the governmental supremacy 
of the Romans over this territory. They had occupied it 
under the consent of the Roman authorities and had 
recognized their sovereignty. At that moment the Roman 
Governor over the region was one Syagrius, and his official 
seat was Soissons. Exactly to whom Syagrius was, as 
Governor in Gaul, directly responsible was not very clear. 
Five years before this Odoacer, the Gothic Chieftain, had 
driven the Co-Emperor out of Ravenna and had seized 
the reins of Government in Italy himself. The leading 
men in Italy had acquiesced in the usurpation and had 
besought the Roman Emperor at Constantinople, Zeno, to 
do away with the system of two Emperors, one at Constan- 
tinople and one in Italy, assume the entire Imperial sover- 
eignty himself and appoint Odoacer his general Lieutenant 
in the West. The Emperor Zeno entertained and accepted 
their proposition and the reign of Odoacer was made thus 
legitimate in Italy and perhaps over all of the Western 
provinces of the Roman Empire. Neither Syagrius, how- 
ever, nor the other Roman Governors in the West, relished 
the idea of subordination to the Emperor's barbarian rep- 
resentative in Italy. He, especially, set about realizing a 
plan for erecting Gaul, or a large part thereof, into an in- 
dependent Kingdom for himself. This movement on the 
part of Syagrius furnished Clovis his supreme opportunity 
and, though only a youth of twenty-one, he seized upon it 
with an insight, a promptness, and a vigor, which are usually 
to be found only in mature and experienced men of greater 
age. Proclaiming his loyalty to the Emperor at Constan- 



THE EFFORT OF EUROPE 85 

tinople he, at the head of his four thousand trained warriors, 
threw himself upon the rebel Syagrius, vanquished him, 
and put him to death. 

Being now himself the only Government left north of 
the Loire, he promptly set to work organizing his authority 
over all of Northern Gaul. His next step was equally states- 
manlike. He saw that the Gallo-Romans were controlled 
chiefly by their Bishops and that the friendship and co- 
operation of the Bishops of the orthodox Church were in- 
dispensable to the full realization of his plans. He imme- 
diately began cultivating their friendship, seeking their 
advice, deferring to their wishes, confirming their jurisdic- 
tion as conferred by the Roman Imperial Constitution, and 
increasing their possessions from the domains of the Roman 
Imperium, which he had promptly seized as the represen- 
tative of the Emperor in Gaul, and finally in 496 acknowl- 
edging conversion with his whole people to orthodox Chris- 
tianity. 

The dramatic description of this conversion given by 
the early historians is not germane to our subject and 
need not be repeated here. We will only refer to the politi- 
cal advantages gained by it. In a word, it simply made 
the King of the Franks the defender of the orthodox Chris- 
tian faith not only against individual dissenters, but against 
the other German rulers and tribes who had seized upon 
other parts of Gaul, viz. : the Visigoths in Aquitania south 
of the Loire and the Burgundians in the southeast, and it 
secured the vast influence of the Bishops throughout all 
Gaul over the Gallo-Romans in behalf of the legitimacy of 
the Frankish King and the extension of his reign over all 
Gaul. This all came quickly to pass and at the same 
time the Roman Emperor, Anastasius, influenced by the 
loyalty, real or pretended, of Clovis in dealing with the 



86 GOVERNMENT AND LIBERTY 

treason of Syagrius, and by the attitude of the GaUic 
Bishops, made him Patrician and Roman Governor or 
Proconsul in Gaul. With this act of the Emperor and 
the attitude of the Bishops the loyalty of the Gallo-Romans 
to King Clovis was secured, and their obedience to his 
Government as legitimate was established. 

Moreover, the authority of Clovis as Roman Proconsul 
in Gaul and Defender of the orthodox Church had a power- 
ful reflex influence upon his relation to his Prankish follow- 
ers. In a word, it made it impossible for them to demand 
his abdication in favor of the re-establishment of the 
primitive German Constitution of Government by the As- 
semblies of the freeholders. His Kingship, i. e., his heredi- 
tary Government over the Franks, was now established 
beyond all peradventure. Here was now the state which 
was to take the place of the Roman Empire in guiding and 
directing the civilization of Europe for centuries to come. ] 

Let us examine, now, whether in its Constitution and 
organization it contained any provision for the solution of 
our problem of the reconciliation of Government with 
Liberty. Naturally, there was no such thing as a written 
Constitution for a state having such an origin as the Mero- 
vingian Kingdom of the Franks. There was, indeed, a 
law book of the Salian Franks, dating back to a period be- 
fore the rise of the Merwing Chieftains, but it contained 
little or nothing in the way of public law, and as to the 
question of Individual Liberty it certainly went no further 
than to fix the common custom in the dealings of men, in 
other words, due process of law between man and man. 
It contained one provision which furnished an example for 
the law of descent of the Crown. It was that no woman 
could hold land; in other words, that land was heritable 
only in the male line. 



THE EFFORT OF EUROPE 87 

The military origin and the military character of the 
Kingdom of the Franks made, however, this new state, in 
principle, a military despotism, in which the will of the 
King was law, law administered by his own appointed 
agents, responsible to him and dismissible by him at his 
pleasure. But there were many things which stood in the 
way of the full realization of such a principle. The main 
thing, the one thing above all others, was the Christian 
Church, well organized under its Bishops, and possessing, 
according to the Roman public law, the power of interces- 
sion with the Government in behalf of the individual and 
of the people, and the power of controlling and administering 
education and charity, and the law of domestic relations. 
The authority of the Frankish King over his Gallo- 
Roman subjects depended almost entirely upon the influ- 
ence of the Bishops and lower Clergy over the people. He 
must, therefore, in his Government not only leave them in 
possession of the powers recognized to them by the public 
law of the Roman Empire, but he must increase those 
powers from time to time, in order to maintain their friend- 
ship and co-operation. Then, the development of the 
agrarian relations raised up an aristocratic class which was 
little inclined to endure any unlimited powers in the Crown. 
The vast public domain in Gaul was, of course, seized by 
Clovis as the successor to the Imperial agents. Upon this 
domain his crude fiscal system was based. He divided the 
most of it among his followers in arms as compensation 
for future as well as for past service. He created thus a 
class of Manorial Lords, holding vast landed estates which 
they worked either with slaves or let out to tenants on con- 
dition of service or payment of some kind of tribute. These 
Lords assumed the powers of local Government over the 
residents upon their estates as the incident of their prop- 



88 GOVERNMENT AND LIBERTY 

erty in the land. It was naturally the understanding of 
the King that he had given to these followers these prop- 
erties in possession, without definite tenure, and upon con- 
dition of certain service or tribute of an honorable char- 
acter to be rendered to the King. On the other hand, those 
of them especially who held the larger estates regarded these 
as their own share of the conquested booty, over which 
the King had no further power and to which he had no 
further claim. In other words, the King considered these 
properties as under feudal tenures, tenures according to 
which the ultimate property remained in the Crown, while 
the Manorial Lords regarded them as of allodial tenure, 
tenures according to which the ultimate property, as well 
as the immediate possession, was in the Lord. This differ- 
ence of view upon this fundamental question was bound 
to force the Manorial Lords to combine, to organize for 
the protection of their property rights as they conceived 
them, against the Crown. Finally the Salians who still 
inhabited the Eastern part of the Kingdom, the Germanic 
soil along and east of the Rhine, and the other Ger- 
man tribes which had been subjected to the Salian King, 
viz.: the Riparian Franks and the Alemanni, still re- 
tained the traditions of the primitive German Consti- 
tution in sufficient degree at least to render the des- 
potic Government of a King over them a practical 
impossibility. 

Here were, in brief, the elements which even separately 
were sufficient to protect the Liberties of the Individual 
against a Royal despotism; in combination they threat- 
ened the sacrifice of Government to Liberty, i. e., they 
threatened to produce anarchy. The struggle which be- 
gan before the death of Clovis in 511 continued with 
somewhat varying fortunes for a hundred years, always 



THE EFFORT OF EUROPE 89 

tending in the long run to the triumph of the ideas of the 
Nobles and Clergy in regard to their immunity from the 
Royal authority. The division of the Kingdom between 
the four sons of Clovis in 511, according to the old Salic 
law of the descent of landed property, and a second divi- 
sion between the sons of Chlotaire I in 561, after a short 
reunion of all the parts under this sole survivor of the 
sons of Clovis, weakened the Royal power and consequently 
aided the Nobles and the Clergy in securing a further ex- 
emption from the King's Government. Meanwhile the con- 
fusion which reigned everywhere forced the small land- 
holders to seek the protection of their noble neighbors and 
the price of this protection was the surrender of their little 
properties to their respective protectors, retaining the pos- 
session of them and paying the protector tribute for the 
possession. It also caused the inhabitants of the cities to 
come more and more under the government of their re- 
spective Bishops. The King's governmental agents in the 
localities, viz.: the Counts, were thus limited more and 
more in the territorial extent of their respective jurisdic- 
tion over the ordinary subjects of the realm. 

It was the custom of the Frankish Kings to reward their 
Counts by attaching an estate to the office. As now the 
Count's jurisdiction over the ordinary subjects was nar- 
rowed, he too gave personal protection to the small land- 
owners around his estate upon like terms as the Manorial 
Lords. His official power helped him to force such per- 
sons into such private relation to himself. In other words, 
as his official power grew less, he developed into a Manorial 
Lord with private jurisdiction over the tenants of his 
official estate as well as those of his private estate, and as 
the two were inextricably commingled, he claimed to hold 
the official estate as heritable property and the office of 



90 GOVERNMENT AND LIBERTY 

Count also, which now became more and more the incident 
of the estate. 

Such was the condition of the Kingdom at the begin- 
ning of the seventh century, when the Nobles and Clergy 
combined to enforce their claims against the Crown. The 
Nobles were led by Pippin of Landen, the Chief of the Nobles 
of the Eastern part of the Kingdom, then called Austrasia, 
and the Clergy were led by Arnulf the Bishop of Metz. 
They resolved to restore the unity of the Kingdom by mak- 
ing Chlotaire II sole King, force him to rule through three 
Mayors of the Palace, one for each of the existing divisions 
of the Kingdom, viz.: Neustria, the Western, Austrasia, 
the Northeastern, and Burgundy, the Southeastern, and to 
extort from him a charter of their liberties, rights, and 
privileges. This all came to pass in the years 614 and 615. 
Of these three provisions of reform, the one most important 
to the question we are discussing is, of course, the charter 
of liberties. This comprehended, first, the acknowledg- 
ment on the part of the Crown of the hereditary tenure to, 
and full property in, all the landed estates of the Nobles 
and confirmation of all the grants to the Bishops as of per- 
petual force; second, complete restitution of all properties 
which any of the Kings had taken from Nobles or Bishops; 
third, the independence of the election of the Bishops by 
the Clergy and people; fourth, independence of the Judicial 
Magistrates and the right of every person to a standing in 
Court; fifth, immunity of the Clergy from responsibility 
to the Royal Courts and widening of the jurisdiction of the 
Church tribunals; lastly, abolition of the taxes levied by 
the Kings on the estates of the Nobles and of the Church. 
The Nobles and Clergy proposed as a body, under the direc- 
tion of Pippin and Arnulf, to enforce the observance and 
execution of these pledges. Furthermore, they resolved to 



THE EFFORT OF EUROPE 91 

elect in each division the Mayor of the Palace through 
whom the King should rule. Here was certainly a con- 
scious attempt on the part of the higher classes, what we 
may call the aristocracy of the Kingdom, to reconstruct 
Government, give it its proper unity and authority, define 
Liberty, and reconcile the two in a more advanced political 
system. 

Let us examine now a little critically just what this 
movement effected. It certainly secured the Nobles and 
Clergy sufficiently in the enjoyment of Individual Liberty 
and Immunity against governmental power. In fact it 
went too far in this direction, because the Nobles and 
Bishops were not simply private persons and the privileges 
secured to them were not simply of a private nature. The 
properties confirmed to them were the original domain of 
the state, and their withdrawal from the duty of contribu- 
tion to the Goverimient left the Government without any 
sufficient revenue to accomplish its ends. Again the 
Nobles and Bishops were local Governors over the inhabi- 
tants of the manors and of the cities. The withdrawal of 
their jurisdictions from Royal supervision was a step in 
the direction of the imiversal dissolution of the Kingdom, 
i. e., in the direction of anarchy. And lastly in spite of 
the provision that every person should have a standing in 
the Royal Courts, the fact that the Judges of the Royal 
Courts, viz.: the Counts, were themselves developing pri- 
vate manorial jurisdictions in the maimer already indicated, 
at the expense of their official powers, helped on the general 
trend of the development of the aristocratic Republic under 
monarchic appearance, the principle of which generally is 
oppression downward coupled with defiance upward. 

In less than ten years from the establishment of the 
Constitution of Chlotaire II, the aristocratic development 



92 GOVERNMENT AND LIBERTY 

had proceeded so far, especially in the Eastern part of the 
Kingdom, that Chlotaire was compelled to send his eldest 
son, Dagobert, still in youthful years, to Austrasia and allow 
him to set up a quasi-independent rule under the direction 
of Pippin of Landen and Bishop Arnulf. This showed 
how much or rather how little the Nobles regarded the 
unity of the Kingdom which they had less than ten years 
before insisted on. In 628 Chlotaire II passed from earth, 
leaving two sons, Dagobert and Charibert. Dagobert at 
once asserted his sole right to the whole Kingdom. He 
appears to have done this of his own initiative. He was 
still young, but he seems to have been a real statesman. 
He saw, at the outset, that to realize his purpose of the re- 
juvenation of the Royal authority he must proceed from 
Neustria, instead of aristocratic Austrasia, as his nucleus 
of power. He left Austrasia to Pippin and Arnulf, went 
into Neustria, set up his court at Paris, was the founder of 
Paris as the capital of France, and undertook to restrain 
the Nobles and the Clergy and to elevate the common 
people and to administer even-handed justice to all in the 
Royal Courts. His success in Neustria was very great and 
promised the restoration of the Royal power everywhere. 
But again the Austrasian Nobles demanded a separate 
King and Dagobert was obliged to send his three-year-old 
boy Sigebert to give the outward form of authority to any- 
thing which Pippin and Arnulf might choose to do. 

In 638 the good King Dagobert died, leaving Sigebert, 
a boy of eight years, as King in Austrasia, and Clovis II, 
a child of four, as King in Neustria. The aristocratic 
principle had triumphed completely over the monarchic. 
The period of the Rois Faineants had begun. The King- 
ship was now used by the Nobles and Clergy to cloak their 
own actual rule. They had entirely abandoned their orig- 



THE EFFORT OF EUROPE 93 

inal function of a check upon governmental despotism in 
behalf of Individual Liberty and had become an unlimited 
aristocratic Government, but with a bond between its con- 
stituent elements so slender that the despotic imity was 
almost immediately rent asimder by the ambition of every 
Noble and every Bishop to rule independently in his lo- 
cality. The common man went to the ground everywhere, 
except in the cities under the milder rule of the Bishops. 
Elsewhere he became the vassal or tenant or slave of the 
Manorial Lord. Apparently, Government had been sacri- 
ficed to Liberty, but this was true only in behalf of the 
Nobles and Bishops. As to the common subject. Liberty 
had been sacrificed to the unlimited local Government of 
the Nobles and the Bishops. Fifty years more of this 
wretchedness followed until the Nobles and Bishops them- 
selves were made to feel that their excessive independence 
must be placed within bounds. 

The Nobles of Austrasia elected Pippin Heristal, the 
grandson of Pippin of Landen, their Duke as well as Mayor 
of the Palace to the Merwing King in Austrasia, and in 
the battle of Testry in 687, he and his Austrasians con- 
quered Neustria, and he assumed the rule in Neustria and 
Burgundy, i. e., the other parts of the Kingdom, as Mayor 
of the Palace to the Merwings. With this the Royal power 
throughout the Kingdom was in one hand again, the hand 
of the mighty Duke of Austrasia, in whose house the May- 
orship of the Palace in Austrasia had become virtually 
hereditary. Still the Pippins did not yet venture to wield 
the Royal power in their own names. The legitimacy of 
the Merwings was too strong a spiritual power among the 
masses to risk, as yet, revolution over a name. The Pip- 
pins must win the favor of the Bishops, and the Bishops 
and Clergy must educate the people before this step could 
be safely taken. 



CHAPTER V 

THE CAROLINGIAN EMPIRE 

The creation of the Holy Roman Empire of the German 
Nation in the last three-quarters of the eighth century was 
the mightiest work of the entire Middle Ages. This great 
Institution bridged the whole way between ancient and 
modern times. The appreciation of the elements out of 
which it was constituted and the welding of these together 
into the vast state body bearing this name give evidence 
of an intellect and a will, in a word of a personality, whose 
equal is difficult to find throughout historic time. In fact 
we cannot attribute this great work to a single personality. 
In the first place, four of the most mighty state builders 
which the world has produced out of a single family wrought 
upon it through more than a hundred years. Pippin of 
Heristal, Charles Martel, Pippin the Short, and Charles 
the Great, and with these we must connect in the first rank 
the Bishops of Rome, Gregory III, Zacharias, Stephen III, 
and Leo III, and the great Archbishop of Metz, Boniface, 
to say nothing of hundreds of others, lay and clerical, who 
contributed no small share. The enterprise was nothing 
less than the union of all the German tribes and peoples 
upon the European Continent into one great state body 
with the West Roman and Romanic peoples, having for 
its cementing bond the orthodox Christian Church as rep- 
resented by the Bishop of Rome, the Empire of orthodox 
Christendom. 

94 



THE EFFORT OF EUROPE 95 

The conditions, ethnical, social, political, and religious, 
existing during the eighth century in Europe seemed to 
make such a consummation impossible, but to the eye of 
the great Carolingians they really conspired to assist in 
bringing it about. I am not writing a history exactly and 
will not, therefore, hold myself to a sequence of dates in 
giving a brief survey of these conditions. There was, first, 
the internal situation of the Kingdom. As I have before 
indicated, the Royal authority had ceased to be any real 
power. The Manorial Lords and the Bishops had absorbed 
the entire Royal domain, and had organized almost inde- 
pendent territorial Governments within their respective 
estates. The Bishops, moreover, exercised quasi-govern- 
mental powers, i. e., powers which could be executed by 
physical force against all opposition, over the entire popu- 
lation, that part not resident upon the Episcopal estates 
as well as that so resident. Then the original Royal offi- 
cials, the Counts and Margraves, whose jurisdiction over the 
Counties had become so honeycombed by the development 
of the Manors and the Episcopal estates that but little was 
left to them except their jurisdiction over the estates at- 
tached to their offices as salary for their services, had suc- 
ceeded in making these estates private property and ruled 
therein as Manorial Lords rather than as Royal officials. 
Finally, the faineant Merwings themselves were under the 
complete control of their Majordomo, now the powerful 
leader of the Austrasian Nobles, the chief of the house of 
the Pippins. In the second place, the Kingdom and Chris- 
tendom itself were threatened from without, and from two 
directions. The Moslem invasion had rolled over Northern 
Africa, over Hispania, and across the Pyrenees themselves 
and was already advancing toward the valley of the Loire, 
and the Pagan Saxons were threatening the boundaries on 



96 GOVERNMENT AND LIBERTY 

the northeast. In the third place, the Lombards who had 
occupied the Po valley were preparing to make conquest 
of the Exarchate of Ravenna, the seat of the Roman Gov- 
ernor in Italy, and the Roman Emperor at Constantinople 
was in conflict with the Bishop of Rome over the so-called 
worship of the images in the Western Churches. Finally, 
the Bishop of Rome not only exercised the secular Govern- 
ment as well as the ecclesiastical authority in Rome but 
claimed the Patriarchal power over the whole West Roman 
Empire, i. e., the power to appoint Archbishops and vest 
them with control over the Bishops and thus re-establish 
hierarchic unity in the Western Church. 

No one can tell whether the Carolings planned the course 
which they followed in view of these conditions at the 
beginning or at any given point in their progress, but all 
they did was so rational, so consistent, and so successful 
that it all appears as parts of a consecutive whole. They 
seemed to understand that they must have at the same 
time the support of a great army and also of the Church 
as a unit. How could they secure both of these things, 
when the means for constructing and maintaining such an 
army must be taken from the Church, or better, from the 
Bishops? The vast Crown domain which the Merwings had 
bestowed upon the Bishops must be reclaimed by the 
Carolingian Chief and its use bestowed upon laymen as 
pay for military service. How, then, could the support of 
the Church be secured and retained under this scheme of 
confiscation of Church property ? The Carohngians found 
the way. They sought and secured the friendship of- the 
Bishop of Rome by delivering him both from the power 
of the Lombards and the Byzantinian Emperors, and by 
re-establishing his position of Patriarch of the entire West- 
ern Church, and finally by giving him the Exarchate of 



THE EFFORT OF EUROPE 97 

Ravenna as Church domain over which he should exer- 
cise secular as well as spiritual power. Through the Bishop 
of Rome and the Monks sent out by him as his Legates in 
all directions they influenced the Bisl;iops to abstain from 
dissipation and luxurious living and to follow more closely 
their spiritual calHng, and persuaded them that unless they 
surrendered a part of the properties which they had re- 
ceived from the Merwings to the state, the state would be 
unable to defend any of their possessions or even their lives 
and the existence of the Church against the Moslems on 
the one side or the Pagans on the other. Many of the 
Bishops yielded readily to these views and those who did 
not were so overwhelmed by the pressure from the Monks, 
the Roman Legates, the public opinion, and the will of 
the Carolings that the general confiscation was carried 
through; and with the restored domain the new army of 
liegemen was created by which the Moslems were driven 
back and the Lombards and the Saxons conquered. 

The results of these movements and this policy were 
most important to civilization. They established, in the 
first place, the Papacy of the Bishop of Rome, which con- 
sisted of the Patriarchate of the entire Western orthodox 
Church, whereby he could appoint the Archbishops, effect 
the union of bishoprics into archiepiscopal provinces and, by 
the bestowal of the pallium upon the Archbishops, vest 
them with the superior control over the Bishops, assemble 
Councils of the entire Church and preside over them, cre- 
ate Monastic orders and send the members of them as 
Legates into every diocese to watch over the conduct of 
the Bishops and secular Clergy and report the same to 
him, together with the secular Government of the City of 
Rome and the Exarchate of Ravenna, the so-called Roman 
Duchy. Modern historians, and we moderns generally, 



98 GOVERNMENT AND LIBERTY 

are inclined, by far too much inclined, to regard this cre- 
ation of the Carolings as a great historical error, which 
has plagued European civilization from that day to this. 
I cannot so regard it. I must look at it from the point of 
view of the conditions which it met and the problems 
which it solved. Except for the hierarchic organization 
of the Church culminating in the Papacy of the Roman 
Bishop, and for the Monastic orders created by the Popes 
and acting as his immediate agents throughout Western 
Christendom, the Church ofl&cials would have become 
completely demoralized, would have become territorial 
Lords with secular governmental functions, Hving in riotous 
luxuriance, and would have transformed the spirit of Chris- 
tian unity into an actual anarchy of hostile Chieftains, and, 
except for the temporal power of the Popes over Rome 
and the Exarchate, the Christian Church would not have 
been able to check the despotism of secular Government. 
Let it be always remembered that at that period of the 
world's history men had not discovered the distinction be- 
tween the state, the unlimited sovereign, and the Govern- 
ment, its limited agent for accomplishing certain of the 
state's purposes, viz. : those which are to be realized by the 
employment of physical force, if necessary. Then and on 
that account, Government was theoretically unlimited and 
actually so, if strong enough to execute its will. Until this 
distinction should be reached and Government should be 
limited by the state in behalf of Individual Liberty, one of 
the elements of which is the freedom of the religious con- 
science, the Church organization was obliged to be hier- 
archic and the head of that organization was obhged to 
have temporal power, in a district and over a population 
large enough to protect him, and through him the Church 
at large, against the rude despotism of secular Govern- 



THE EFFORT OF EUROPE 99 

merit. The Carolings committed no error in the work 
which they did for the development of the Papacy of the 
Roman Bishops. Without it I conceive that the Christian 
Church would have become secularized and heathenized 
beyond recognition and the Middle Ages would have really 
been that age of darkness for which, in spite of its remain- 
ing magnificent monuments of civilization, culture, and 
enlightenment, it has been erroneously held. 

The other great result of these movements and this 
policy was the creation of the Holy Roman Empire of the 
German Nation, which was the great controlling force in 
the civilization of the European Continent for a thousand 
years and held the forces of anarchy and heathenism at 
bay until the national developments of the eighteenth cen- 
tury produced the ethnical and ethical conditions for the 
new political civilization of the modern time. The first 
step in this great constructive work was the transfer of 
the Royal power from the decadent Merwings to the cap- 
able and powerful Carolings. It is always a critical, not 
to say a perilous, thing to effect a revolution like this. 
To dispossess a family of a throne held by the principle of 
hereditary right was felt then to be an attack upon the 
principle according to which anybody held anything. 
How sensitive the Franks were upon this point may be 
inferred from the incident of the year 687 when Grimoald, 
the son of Pippin of Landen, sent the Merwing heir to an 
Irish cloister and proclaimed his own son King. The 
Nobles felt at once the demoralization of their own titles 
by this act. They rose en masse, seized Grimoald and his 
son, restored the Merwing heir, Clovis II, and delivered 
the Royal desecrators of the throne into his hands, who 
immediately executed them. The Carolings were taught 
by this experience that they must bide their time until a 



loo GOVERNMENT AND LIBERTY 

new morale should be created and embraced by the great 
mass of men, upon which this change could be founded. 
They resumed their old place of Mayor of the Palace to 
the Merwings and addressed themselves, among other 
things, to the work of inventing a new principle of legiti- 
macy by which to effect the ominous and all-important 
change of dynasty. They must have had this in mind in 
approaching and cultivating the Bishop of Rome, for, after 
more than two-thirds of a century from the death of 
Grimoald, Pippin the Short, feeling that the time was ripe 
for a new effort, made as his first step an appeal to the 
Bishop of Rome for his approval of the assumption of the 
Crown by the Carolings. The Bishop seems also to have 
been fully prepared for the appeal. He approved the 
change of dynasty and commanded the great Archbishop of 
Metz, Saint Boniface, the Apostle to the Germans and the 
Bishop's Legate for the Prankish Kingdom, to bless this 
change by anointing Pippin King of the Franks. This was 
done in the year 752 in the cathedral at Soissons. The 
Bishop of Rome as Patriarch of the Western Church and, 
therefore, as High Priest of the orthodox Christian Church 
thus created the new morale for deposing and elevating 
Kings, viz. : the word of God as voiced through him. It is 
true that there was some sort of an election or acclamation 
by the Nobles and officials, but, while this gave assurance 
that the fate of Grimoald and his son would not be repeated, 
it had no such influence over the mind of the masses as the 
declaration of the Bishop through the great Boniface that 
thereafter the Carolings were the rightful Kings of the 
Franks. A few years later the Bishop himself, Stephen III, 
came from Rome to Rheims and reanointed Pippin and 
his sons Kings of the Franks. At the same time he con- 
ferred upon Pippin the title of Patrician of Rome and laid 



THE EFFORT OF EUROPE loi 

upon him the obHgation of defending the Holy City against 
all enemies, especially against the Lombards. The follow- 
ing year, 755, Pippin redeefmed his pledge, tore the Exar- 
chate of Ravenna from the Lombards and conferred it, as 
to its Government and public properties, upon the Bishop 
of Rome as the States of the Church. One year later he 
went again across the Alps, inflicted upon the Lombards 
another disastrous defeat and increased the States of the 
Church by the cities of Rimini, Pesaro, Fano, Sinigaglia, 
and Ancona. 

It was reserved, however, to his great son Charles to 
put the capstone and the finish upon the great work. For 
thirty years, from 770 to 800, Charles extended by force 
of arms the boundaries of the Kingdom until it stretched 
from the Eider in the Danish peninsula to the Ebro in the 
Spanish and from the Atlantic Ocean on the West to the 
coasts of Dalmatia in the East. It included all of the 
German tribes, the Italian and Gallo-Roman populations, 
and a large Slavic element. It was no longer a Prankish 
Kingdom in fact, but the Empire of Continental Europe. 
The moment had come for the new creation, and it was 
undertaken, again, in understanding with the Bishop of 
Rome. In 799 the inhabitants of the City of Rome re- 
volted against the Government of Bishop Leo III. Leo 
fled across the Alps to the camp of King Charles at Pader- 
born. There these two great characters laid their heads 
together and out of their deliberations sprang the plan of 
the Holy Roman Empire of the German Nation. What 
that plan was the sequel will show. Meanwhile King 
Charles sent the Bishop back to Rome with a powerful 
escort of loyal Franks to restore him to power and protect 
him in the exercise of his functions until he, Charles, should 
come and sit in judgment between the Bishop and his ac- 



I02 GOVERNMENT AND LIBERTY 

cusers. At the end of the year the King advanced to 
Rome at the head of a large force. No opposition what- 
soever raised its head. He assembled a Council of Bishops 
and bade them proceed with the trial of Leo, but they, 
probably prompted by the King, disavowed jurisdiction 
over the incumbent of the Apostolic seat, and the King 
disciplined his accusers. Then came the final act. On 
Christmas Day, according to the time-reckoning then em- 
ployed the first day of the year 800, Charles and his Chief- 
tains and the leading Romans assembled in the Apostolic 
Church to hear the mass read by Leo himself. Suddenly, 
as if by inspiration, the Bishop approached the kneeling 
King, anointed him with holy oil and placed a Crown of 
gold upon his head and the surrounding multitude shouted: 
"To Carolus Augustus, crowned of God, great and peaceful 
Emperor of the Romans, life and victory," The die was 
cast. The great act was performed which determined the 
political history of Continental Europe for the next thou- 
sand years. 

Let us now examine the system of Government and Lib- 
erty resulting from this combination of elements and forces 
in somewhat larger detail. In the first place, the Imperium 
was unlimited authority, sovereignty, derived from God, 
a power over subjects, not a power conferred by the peo- 
ple or by anything human. This was expressed in the ac- 
claim of the multitude: "crowned of God," and was also 
declared by the Bishop Patriarch of Rome, as God's human 
agent in transmitting such authority. We will not enter, 
at this point, into the question whether the Bishop of 
Rome might exercise any discretion of his own in with- 
holding this authority or withdrawing it. That will come 
later. No such idea prevailed at the moment of this first 
coronation. The new Emperor unquestionably considered 



THE EFFORT OF EUROPE 103 

the Imperial sovereignty as his own, to be transmitted to 
his family descendants without any interference with the 
inheritance by anybody. We may say, then, that we have 
here a solution of the first problem of political science, viz. : 
the question of sovereignty, unlimited original authority. 
It was the very substance of the Imperium and it was ex- 
ercised by the Emperor. 

The Emperor was also the Government as well as the 
Sovereign, unless he should choose to create, as Sovereign, 
a Constitution or charter and establish through it a Gov- 
ernment separate from himself and vest it with powers 
and impose upon it limitations. This he did not do. In 
fact, the distinction in idea between sovereignty, i e., the 
state, and Goverimient, the agent of the state for accom- 
pHshing certain ends by physical force, had not arisen in 
the thought of the age. The Sovereign was the Govern- 
ment. The state ruled immediately. We may call this 
form of Government immediate Government, which means 
unlimited or despotic Government in theory. Whether 
such a Government may be able to realize its despotic 
power or not is another question. In analyzing the Caro- 
lingian Constitution, it is sufficient for us that we start out 
from the principle of the God-conferred sovereignty of the 
Emperor. It makes the way easy for us. We do not have 
to consider at all whether the Emperor, as Government, 
has the authority to do one thing or is prohibited from 
doing another thing. Anything that the Emperor does or 
commands is lawful. His sovereignty makes it lawful. 
The civilization of the Orient and of the Roman Empire 
had prepared the minds of men to appreciate and enter- 
tain this idea. We start then with the Emperor as Sov- 
ereign and Government, the source of all law, of all office 
and authority, of all rights, immunities, privileges, and 



I04 GOVERNMENT AND LIBERTY 

honors. It is true that there existed already bodies of 
custom and of something like law in the different parts of 
the Empire, and officials and other exercisers of authority 
and persons enjoying immunities and privileges of various 
kinds, but these must all now be considered as further ex- 
isting by permission of the Emperor, and subject to his 
disposition. The fact that he allowed much to remain as 
it was and proceeded only gradually in introducing changes 
must not confuse us as to the theory of the Imperial au- 
thority. 

With such a theory of Government the next point to be 
considered is not the system of Assemblies, but the ofl&cial 
system, since the Assemblies were composed chiefly, if not 
entirely, of the Officials. Charlemagne had already had 
sufficient experience with the holders of the Ducal office, i. e., 
the office of a leader with large military functions and dis- 
cretion over the inhabitants of a considerable territory, gen- 
erally on the frontier, and claiming title by hereditary 
right; and yet it was not possible to protect the boundaries 
of the Empire against the sudden incursions of foreign 
foes without an office with something of this nature, cer- 
tainly as to discretionary miHtary powers. The adminis- 
trative policy finally adopted by Charlemagne was what 
we would term the County system. He divided the Em- 
pire into small districts in the interior and into districts 
of increasing size on the frontiers, and appointed as general 
administrative officer in each a Count, Graf, Gerifa, Sheriff. 
On the frontiers in the larger districts his Counts were 
vested with larger military discretion and were called 
Markgrafen, Margraves, i. e., Counts in the Marks, Counts 
in frontier districts. The tenure in every case was appoint- 
ment by the Emperor, and the term was for life, unless dis- 
missed before the end of such term by the Emperor. The 



THE EFFORT OF EUROPE 105 

powers of the Count were those of general administration. 
They executed the orders of the Emperor in the several 
districts and administered justice in his name. They held 
the chief mihtary command and also such police authority 
as was then exercised by the state. Subject to them as 
inferior officers were the Centenarii and the Vicars, usually 
appointed by the Count or by the Emperor on the Count's 
nomination. They discharged usually the judicial powers 
and the police powers of the Count, while he was occupied 
more with the powers of political and military administra- 
tion. The Emperor appointed the Counts and Margraves 
from any class of the people, except that among the Saxons, 
as a sort of solatium to the conquered Chiefs, he usually 
selected them. It was at the outset no evidence of nobility 
that one held the office of Count. To the Count's office 
was attached usually a landed estate, the usufruct of which 
constituted the salary of his office. This estate continued 
to be the property of the Crown, always in theory and at 
first in fact, only the possession or use of it going with the 
office. 

The County system of administration was, however, 
honeycombed in very large degree, first by the Municipali- 
ties and second by the Manorial estates. The Municipali- 
ties, the Cities, especially those situated in the Romanic 
parts of the Empire, were governed by the Bishops in most 
respects. The Bishops were the administrators of the 
Roman law, which was the system of private law still ob- 
taining between the Romanic inhabitants, since law was 
then regarded as personal, the Franks being judged accord- 
ing to Frankish law and the Romans and the Gallo-Romans 
according to the Roman law. The Emperor kept a Count 
in each Municipality, therefore, to administer the Frankish 
law between Franks and to sit in judgment with the 



io6 GOVERNMENT AND LIBERTY 

Bishop where the controversy was between a Frank and a 
Roman. He also sought to make the Bishop an Imperial 
ofl&cer by bringing his appointment more and more into 
his own hands, so that the Bishop became a sort of urban 
Count. Nevertheless the Bishops always maintained a 
far greater independence of the Imperial authority than 
the Counts were able to do, and were everywhere a check 
upon the arbitrariness of the Count's government. Then 
the Lords of the Manorial estates, those created by the 
Carolings, of which the grantees had only the possession 
and usufruct, the fee, as we would say, remaining in the 
King or Emperor, as well as those created by the Merwings, 
and held by the allodial tenure, had gradually assumed the 
exercise of governmental power over the inhabitants of 
the estates and, since the estates had become hereditary, 
exercised these powers as a sort of property incident to 
the holding of the estate. The Emperor endeavored to 
reduce these Manorial Lords to the position of Officials, 
to make of them Counts, so to speak, in these estates. 
But his success was only partial and finally failed altogether. 
In fact, as we shall see later, his Counts became Manorial 
Lords instead of the Manorial Lords becoming Counts. 
Lastly, the Emperor saw himself necessitated to allow the 
Ducal power to remain in a few places, as in Brittany, in 
the Spanish Mark, in Benevent, and at times in Bavaria. 
These were all serious breaks in the County system of 
Government, which were never entirely overcome even in 
the reign of Charlemagne himself. Even then they occa- 
sioned great irregularities and confusion, and after his 
strong hand ceased to guide the helm, they increased from 
year to year, until the feudal system of practically inde- 
pendent local powers supplemented the Royal official 
system altogether. 



THE EFFORT OF EUROPE 107 

Out of the Officials, lay and ecclesiastical, and the Ma- 
norial Lords, the Assemblies were constituted. It is true 
that nominally every free Frank was entitled to appear, 
but the number of free Franks who were not Manorial 
Lords or Officials was not, at this time, very considerable. 
I should say that, at this time, at least nineteen-twentieths 
of the population were slaves or dependants and that this 
proportion was rapidly increasing from year to year through 
the increased pressure of the military service upon the 
common freemen. They were being driven thereby to 
give up their little estates to some Manorial Lord or Bishop, 
and receive them back in possession only as the tenants 
of the Lord or Bishop to whom they had commended them- 
selves, losing thereby their full freedom but escaping mili- 
tary duty. 

Practically the Assemblies consisted of the elements 
above mentioned and sometimes only of the more important 
men among these; and since the Manorial Lords were in a 
certain sense Officials, as well as the Bishops, we may say 
broadly that these bodies were the Emperor's Officials 
gathered around him for the purpose of informing him of 
the condition of things in all parts of the Empire, counselling 
him as to measures and receiving his commands. They 
were not legislative bodies in any true sense of the word. 
They were rather the appointed Councils of the Emperor. 
They were held for the whole Empire and for the different 
parts or districts of it and they were called by the Emperor 
himself or by some Official authorized by the Emperor to 
hold them. The Emperor himself presided over the Im- 
perial Assemblies, i. e., those representing the entire Em- 
pire and presented the business for them. After obtaining 
their advice, the Emperor decreed the measures of law. 
These were written down by the scribes, usually clergymen, 



io8 GOVERNMENT AND LIBERTY 

and proclaimed by the Emperor as law. They were en- 
titled Capitularies, and we have collections of them which 
give the best idea we can get of the nature of the Imperial 
legislative system. They manifest, in the first place, that 
the Emperor was the supreme and exclusive lawgiver and 
that the Assemblies of his own Officials were only his ad- 
visers. They show, in the second place, that the Emperor's 
legislative power was entirely unlimited and that, although 
there were bodies of law, both German and Roman, extant 
and applied, they were so by Imperial permission and could 
be changed or abolished by the Emperor at pleasure. And 
they demonstrate, lastly, that there was as yet no dual 
or federal system of legislation or of Government in the 
Empire, since they cover every possible subject from the 
organization of the Army to the price of commodities. 
The sovereign Emperor could only be limited in his Govern- 
ment by himself and self-limitation is no limitation in the 
theory of pohtical science. 

It would appear from this brief survey of the Carolingian 
Imperial system that in it Liberty had been, in principle 
at least, entirely sacrificed to Government, and that the 
problem, which we are considering, of the reconciliation 
of Government with Liberty, was not treated by it as hav- 
ing any existence. This is not, however, strictly true. In 
the first place, the Church was now, under its hierarchic 
organization, more than ever before able to protect the 
Individual against the arbitrariness of Government. It still 
maintained all of its rights and powers in the state as fixed 
under the Roman Imperial Constitution. First, the right 
of intervening between the Government and the subject 
when appealed to by the subject for protection against 
the arbitrariness of Government. This power was exer- 
cised by every Church OflScial and did not require action 



THE EFFORT OF EUROPE 109 

by the whole Church or any division of it. Such slow and 
clumsy procedure would have defeated the purpose of the 
power. This was well understood by the Bishops and 
they never allowed themselves to acknowledge any such 
requirement, if the Government ever attempted to make it. 
Second, the power of according protection from the Govern- 
ment to all persons seeking the asylum of the Churches. 
This was a very effective Umitation upon the arbitrariness 
of Government and was often resisted by ruthless govern- 
mental Officials, but the Bishops insisted upon exercising 
this power, often at the risk of their own lives, and did so 
successfully. Thirdly, the control by the Church of the 
domestic side of life, marriage, divorce, baptism, burial, ed- 
ucation, care of the poor and the sick, was maintained and 
exercised through the more voluntary methods of religion, 
instead of through the physical power of Government. 

If the Church of the Carolingian Empire had been con- 
fined to the exercise of these powers, it would have been a 
capital defense against the arbitrariness of Government, 
but for good or for evil such was not the case. The gift of 
vast estates to the Bishops by the Kings, estates inhabited 
and cultivated by a large population of slaves and depen- 
dants, and the exemption of these estates from the jurisdic- 
tion of the Royal Officials, resulting in the exercise of all 
the powers of secular Government by the Bishops over them, 
which situation the King or the Emperor endeavored to 
meet and control by appointing laymen to Bishop's seats, 
who lived the lives of worldlings, oppressed the inhabitants 
of the estates, and scandalized morals and civilization, all 
this degraded the Church from its high position as defender 
of the civil rights of the people against governmental arbi- 
trariness and despotism and made of its high officials 
themselves oppressors of the helpless and needy. 



no GOVERNMENT AND LIBERTY 

Still this was not yet universally the situation. Among 
the Bishops and especially among the Monastic Clergy 
were very many genuine Priests of devout Christian char- 
acter who held high the torch of Christian civilization and 
protected the people against the oppression of the semi- 
barbaric secular Lords and Ofi&cials. The Church was still 
a mighty defender of the Civil Liberty of the people. How 
the people of Europe in the centuries between the first and 
the sixteenth would have fared without its protecting and 
civilizing lead, God himself only knows. 

Charlemagne established, however, another institution 
as a regular part of the secular Constitution of the Empire 
with the direct purpose of preventing both the secular 
Officials and the Ecclesiastics from oppressing the common 
subject, this was the institution of the Missi Dominici. 
It had been the custom even of the Merwings to send, in 
an irregular way, special agents into the different districts 
of the Kingdom in order to inform themselves of the con- 
dition, needs, and wishes of the subjects and of the con- 
duct of the Officials. It was Charlemagne, however, who 
made the irregular custom a regular continuous practise as 
the most important part of the Constitution and the ad- 
ministration. As a rule the Emperor appointed two Missi 
for each Archdiocese of the Empire, one an Ecclesiastic 
and the other a layman, neither of them being an inhabi- 
tant of the district in which he functioned, and having a 
term of a single year. The purpose of such quahfications 
and limitations was, it is quite evident, to secure able, 
honest, and impartial action on the part of the Missi. Be- 
sides the duty of reporting to the Emperor, as in the time 
of the Merwings and the first Carolings, the conditions ob- 
taining in the different parts of the Empire, they were 
vested with two most highly important powers. The first 



THE EFFORT OF EUROPE iii 

was the superior control of the administration. The 
Counts, Bishops, Abbots, and all other Officials within the 
district assigned to a pair of Missi, were held to give strict 
account of their doings to the Missi and render obedience 
to their directions. Inasmuch as the Counts, Bishops, and 
Abbots held their offices for hfe, they were continually ac- 
cumulating property and powers, which tended always to 
a local autonomy in their hands. It was the duty of the 
Missi to look after and prevent this exaggeration of power 
in the hands of the regular Officials, both lay and ecclesias- 
tical. Especially were the Missi commissioned with the 
duty of preventing the Officials from transforming the 
royal benefices into their own property. Their duty was 
the same over against the Manorial Lords who held Royal 
benefices. These were especially prone to absorb the Royal 
benefices into their allodial estates. Still further, it was 
the function of the Missi to hold the freemen to the dis- 
charge of their military duty and to prevent them from 
escaping it by commending themselves to the protection 
of some Manorial Lord, Bishop, or Abbot, or to the private 
protection of a secular Official, thus giving the fee of their 
land to the protector and retaining only the possession and 
use. This was a most onerous duty and one which the Missi 
found most difficult to discharge. But the duty of greatest 
importance to us, in this study, with which the Missi were 
charged was that of protecting the common subject, especi- 
ally the poor and defenseless, such as widows and orphans, 
from the arbitrariness of the governmental Officials, the 
Bishops and Abbots and even the Manorial Lords. They 
were authorized to hold Courts and Assemblies of a judicial 
nature and to hear all complaints against those in authority 
and to determine whether the acts complained of were un- 
lawful stretches of power or inequitable or too strenuous 



112 GOVERNMENT AND LIBERTY 

exercises of lawful power, and to give relief against all such. 
They were also charged to exhort both subjects and those 
in authority to live according to the golden rule of morals 
and to remember that governmental power must always be 
supplemented by Christian conscience and character in 
order to work out the ends of civilization. If we should 
regard the Emperor simply as the Sovereign, and the 
Counts, Bishops, Abbots, and Manorial Lords, separately 
and in assembly, as the Government, charged with the 
execution of the powers vested in them by the Sovereign, 
and the Missi as supreme Judges authorized by the Sover- 
eign to interpret finally the extent of the powers of the 
Government and of the Liberties of the subject and to 
protect the latter against the former in the enjoyment of 
their Liberties as well as defend the Sovereign against the 
usurpations of the Government, then would we have here, 
indeed, a most intelligible attempt to solve our problem of 
the reconciliation of Government with Liberty. There is 
not much doubt that this was the thought of the great 
Emperor and of the Teachers in his school of PoUtical 
Science at Aachen. His Imperial system was working out 
in this way and had there been three such successors to 
Charles as his three predecessors, it would have become 
the well understood system of the European Empire and 
we cannot but believe would have given the Middle Ages 
a profoundly diflferent turn. But this was not to be and 
things which looked so fair and promised such logical ar- 
rangement and results in 8io were destined to be plunged 
into confusion dire again in 820, to overcome which cost 
centuries of thought and labor. 



CHAPTER VI 

THE ANGLO-SAXON STATE 

We have in the first century and a half of the develop- 
ment of the Teutonic state on British soil the very best 
possible example of what the ancient German political 
system could do in the reconciUation of Government and 
Liberty. This development was wrought by the purest 
of the German tribes, the Angles, the Jutes, and the Saxons, 
all of whom immigrated into the British Island before they 
had become modified in the slightest degree by contact 
with the civiHzation of the Roman Empire and of the 
Christian Church, and who amalgamated neither in blood 
nor ideas with the populations they found upon the soil 
of their newly conquested home, but drove them back 
toward the north and west and settled themselves upon 
practically uninhabited territory. They had a clear field 
upon which to work out their public polity in the new land. 
We have already seen what that system was in the original 
home. The outHne of it, we know, was the free family 
with its hide of land, subject to the almost despotic rule 
of the house father; the union of these house fathers into 
the Assemblies of the village, the hundred, and the tribe, 
as the basis of all Government, as the electoral colleges for 
all Ofi&cials, and as the Legislatures and the Courts; the 
choice by these of the Mayors of the villages, the Princes 
of the hundreds, and the Chiefs of the tribes; and their par- 
ticipation in the Government with these elected Officials, 
except in time of war or migration when they elected tem- 
porary military Leaders, Dukes, and laid all power in their 

113 



114 GOVERNMENT AND LIBERTY 

hands during the period of the movement. This was in 
brief the Constitution which the Jutes, the Angles, and the 
Saxons brought to the British Island in the fifth century 
of the Christian era. 

They came, naturally, under the command of their 
tribal Chieftains, their Dukes, or Earldormen, as they 
were generally called, and they brought with them their 
women, their children, their dependants and slaves, their 
cattle and other animals, and goods and chattels of every 
description. As tribes they settled down upon the land, 
dividing the territory occupied by the tribe into hundreds 
and villages, and parcelling out the land as was the custom 
in the old Germanic home. They established the village 
Assembly as chief police organization, the hundred Assem- 
bly as chief judicial organization, and the tribe or shire 
Assembly as chief legislative organization and ultimate 
authority in the entire system. They elected their police 
Magistrates, their Princes or hundred men, and their Earl- 
dormen in these several Assemblies of the freemen and they 
had no priesthood or religion which placed any restraint 
upon their political actions. 

At the outset. Government was in the hands of these 
elected Officials, whose terms were either for life or for 
an indefinite period; and while the Assemblies participated 
to a limited degree in the exercise of governmental power, 
they acted chiefly as restraints upon that power as exercised 
by the Officials. At the outset, also, each tribe had its 
own independent organization and, when it settled down 
upon the new territory, founded an independent state, the 
Chief of which was its own Earldorman or Duke, and who 
in a very short period of time became its King or something 
like it. 

During the first hundred and fifty years after the begin- 



THE EFFORT OF EUROPE 115 

ning of the conquest the many petty Klingdoms were gen- 
erally united or merged into larger ones until, finally, just 
before the end of the sixth century, seven stood as indepen- 
dent of each other, although acknowledging, from time to 
time, the King of one of them as a quasi-head of all under 
the title of Bretwalda. 

It is, however, the internal transformations which took 
place in these seven states during this period which is the 
thing of chief interest to us in this study. These trans- 
formations, in so far as they relate to the subject which 
we are treating, concern chiefly the altered character and 
purposes of the tribal and hundred Assemblies and of the 
Kingship itself. 

The Kingship had now everywhere taken the place of 
the Dukeship or Earldormanship of the invading tribes. 
The principle of its title had now become election by the 
Assembly of the freemen of the Kingdom from among the 
male members of the Royal race, the Assembly exercising 
the authority to select the most capable one of this race 
or family, according to its own judgment. The Royal 
famiHes were the families of the Dukes or Earldormen of 
the tribes who led the tribes respectively in the conquest 
and migration and each of these claimed descent from the 
heathen God Wodan. The powers of these Kings were 
limited only by the participation of the Assemblies of the 
freemen of the Kingdoms in their Government. The 
merging of the original Kingdoms, however, into the seven 
larger states left the original Kings of these smaller media- 
tized Kingdoms as Under-Kings or Earldormen of the divi- 
sions or shires territorially corresponding to these original 
Kingdoms. These Under-Kings, or Earldormen, at first 
selected by the Assemblies of the freemen of their original 
Kingdoms from among the male members of their respec- 



ii6 GOVERNMENT AND LIBERTY 

tive families, came, after the consolidation of the smaller 
to form the larger Kingdoms, to be chosen by the Assem- 
blies of these larger Kingdoms, while the Assemblies of 
their original Kingdoms became the shire-moots of the 
shires over which they now acted as local Governors. 
Regarding the Assembhes of the freemen in these larger 
Kingdoms as the constitutional basis of the Government, 
rather than as a part of the Government, we have in 
this arrangement a sort of constitutional self-Govern- 
ment in the shires of these respective Kingdoms, which 
might serve to limit, practically, the Royal central 
Government. If these Assembhes had maintained this 
character and composition, they might also have been the 
basis of a constitutional Individual Liberty and might have 
constructed organs to guarantee and safeguard such a 
realm against the absoluteness or arbitrariness of the 
Royal Government, but it was exactly the change in the 
composition and character of these Assemblies which frus- 
trated all this, and spoiled the fair beginning. The cele- 
brated English historian of the period of the Norman 
Conquest somewhere says in substance that when the As- 
sembly of a country of any considerable size is primary, in- 
stead of representative, it always becomes ohgarchic and the 
more democratic its original constitution the more surely 
will this result follow. This was certainly the case with 
the Assembhes of the freemen of the seven Enghsh 
Kingdoms of Kent, Essex, Sussex, Wessex, East Anglia, 
Northumberland, and Mercia. The common freemen, ex- 
cept those dwelling about the usual place of meeting, 
would not attend. Distance and lack of time as well as 
growing indifference precluded it. Only the more im- 
portant personages appeared, the Earldormen of the shires 
and the larger landowners. 



THE EFFORT OF EUROPE 117 

Soon a new element appeared. Each King began to 
create around his Court a personal following, a body-guard 
so to speak, for the protection of his person, for the execu- 
tion of his powers, and for a military staff for the popular 
militia, the freemen of the Kingdom in arms. These were 
the King's Theyns. Some of them the King endowed with 
land, others not, but he was the personal lord of them all 
as well as King in the old sense of leader of the people. 
This element now appears in the general Assemblies of the 
different Kingdoms. It is an element created by the King 
himself, by his own appointment and dependent on his 
will. With this, these general Assemblies of the Kingdom 
became Assembhes of the Earldormen, the King's Theyns 
and the few freemen residing around the place of assembly, 
and perhaps a few of the large holders of land without office 
from a distance. They were now called Witenagemots, 
the Assemblies of the wise men, instead of the Assemblies 
of the whole body of freemen of the Kingdom. In them 
the King's Theyns soon outnumbered all the other ele- 
ments taken together and the acts of these bodies became 
thus the acts of the King's own personal following. 

The character as well as the composition of these bodies 
also underwent a very important change. Instead of 
maintaining the position of national constitutional Con- 
ventions, so to speak, they became now mere governmental 
Councils of the Kings, a part of the Government, a part too 
only advisory and without independent authority. Changes 
of a somewhat similar nature took place in the character 
and composition of the shire-moots, the Assemblies of the 
freemen of the original Kingdoms. The freemen as a 
whole ceased to attend these also, and instead thereof a 
small number of them were required by the Earldorman 
to be present and to act as his assessors in judicial contro- 



ii8 GOVERNMENT AND LIBERTY 

versies chiefly. Only in the Assemblies of the village com- 
munities did the body of the common freemen continue to 
serve and act and these Assemblies were too small and 
unconnected to exercise any important limitations upon 
the Royal power, which was now, under the new conditions 
and changes, fast developing into an absolute power, with 
no constitutional limitations in behalf of Individual Liberty. 
Happily for later England, at the very moment when 
the development of the absolute Kingship in the Anglo- 
Saxon state threatened to obliterate constitutional Indi- 
vidual Liberty from the system, an event of mighty im- 
portance happened, the effect of which was to infuse a new 
morality and a renewed Individual Liberty into the public 
polity, and into individual and family life. It was the 
conversion of the Anglo-Saxon Kingdoms, or rather the 
populations thereof, to Christianity, the Roman Church 
Christianity. At the close of the sixth century the Bishop 
of Rome, Gregory the Great, sent Augustine and his Monks 
to England for the conversion of the Anglo-Saxons from 
their heathenism. The Christian Church had, it is well 
known, been introduced into Britain during the period of 
the occupation of the Island by the Roman Empire and 
the Celtic subjects had embraced the Christian religion, 
but when in the fifth century the Roman legions and the 
Roman Government were withdrawn from Britain and 
when the east, middle, and south of the Island were oc- 
cupied by the Jutes, Angles, and Saxons, exterminating or 
driving back the Celts into the west and north, these 
conquested parts lapsed again into heathenism and broke 
off all connection with the civilized world either political 
or religious. During the entire sixth century Britain was 
as completely out of the world as it had been before it 
was occupied by the Roman Empire. 



THE EFFORT OF EUROPE 119 

The conversion of the Anglo-Saxons began in Kent and 
proceeded chiefly from Kent to the other Kingdoms. 
Naturally, the capital, so to speak, of the English Church 
was laid in Kent. The conversion proceeded peaceably 
and gradually, beginning with the Kings and those in high- 
est station and advancing through all classes of the society. 
The Christian religion was not forced upon any one in 
England. It won its way by persuasion, influence, and 
example, but the conversion was all the more complete, 
universal, and abiding for that. Its progress occupied al- 
most the entire century between the close of the sixth and 
that of the seventh. 

At the end of the seventh century the Church was or- 
ganized in hierarchic form throughout the seven Kingdoms. 
It exercised all of the functions here accorded to it by the 
Roman Imperial system. It looked after the worship, the 
morals, the education, and the domestic life of the people. 
It cared for the sick, the infirm, and the poor. It cultivated 
the aesthetic sense. It developed the sense of justice and 
softened the antagonisms between the different classes in 
the society. It furnished an asylum for the persecuted and 
the oppressed, and it interceded with the secular powers in 
behalf of the weak and helpless. In England as elsewhere it 
was from this time forward the organized safeguard of Indi- 
vidual Liberty against despotic and arbitrary Government. 

But the Church as hierarchically organized, at the end 
of the seventh century, did still more, much more, for the 
Anglo-Saxon state. It made the English nation. It made 
the Kingdom of England and it made the Cerdics Kings 
of England, instead of Kings of Wessex. In the diversity 
of secular Government and law, it was the Church which 
possessed unity of faith, unity of morals, unity of custom, 
and unity of Government throughout the seven Kingdoms. 



I20 GOVERNMENT AND LIBERTY 

The Clergy of the Church throughout the seven Kingdoms 
were united in general Synod for all England and the Arch- 
bishop of Canterbury was the Primate of the Church in all 
the Kingdoms. It was above all things the teaching and 
the influence of the Church which created a national con- 
sensus of opinion and a popular desire for national unity 
in England. In this period of English history the Church 
followed a national unifying policy and paved the way 
thereby for political union and national development. 

Moreover, at the same time that the Church defended 
the Individual against the arbitrary power of the Kings, 
it gave the Kings a more solid basis for their legitimate au- 
thority and power. The English Church of this period 
maintained the principle of rendering to Caesar the things 
which rightfully belonged to Caesar. It gave its consecra- 
tion to the Royal power. It made the obedience of the 
subject to the King and his loyalty to the King a religious 
duty, always, of course, under those limitations fixed by 
the Church in behalf of Individual Liberty and worth. 
And, lastly, it was the Church again which brought the 
Anglo-Saxon state into the orbit of the civilized world. 

It would be difficult indeed for us of the present day, 
with our modern way of thinking, to sufficiently appreciate 
what all this meant for England and the development of 
the English nation. We are all the time thinking of the 
state as the broader, more national organization of the 
people and of the Church as only one of the many insti- 
tutions embraced in it, whereas the English Church of the 
seventh century was the one national organization of the 
people on EngHsh soil and the Kingly Governments, sep- 
arate, based on family right and the choice of the Witen, 
the majority of whom in every case were the King's own 
Theyns, rested upon a far narrower foundation. 



THE EFFORT OF EUROPE 121 

These things are, however, somewhat aside from the 
purposes of this study. It is the Church as the defender 
of the Liberty of the Individual against the despotic and 
arbitrary encroachments of the Royal Governments in the 
England of the seventh, eighth, and ninth centuries which 
interests us. Of this the Church was, at the outset, the 
sturdy and practically sufficient defender. But, alas, it 
did not remain such. It soon became mixed and mingled 
with the secular Government in the same way as, at the 
same period, upon the European Continent. The Church 
became a corporation holding vast landed estates and gov- 
erning locally the peasantry which worked them. The 
Bishop sat with the Earldorman in the shire-moot and par- 
ticipated in the judicial administration of the shire. The 
Bishops of the Kingdoms sat also in the Witenagemot as 
the King's Counsellors in secular as well as spiritual affairs 
and participated in the choice of the Earldormen, the 
Bishops, and the King himself. We have historical record 
that they acted sometimes as Chieftains of the armed hosts 
in war. The Church ceased thus very soon to be an or- 
ganization separate from, and independent of, the Govern- 
ment, whose interests would lay with the subject rather 
than with the Government and whose great political duty 
would be felt by it to be the protection of the subject against 
the despotism and arbitrariness of Government, and be- 
came a quasi-governmental institution having its own sub- 
jects as well as votaries and having in many respects com- 
mon interests with the Royal Government. 

With this the Anglo-Saxon state swung back into the 
position of a benevolent despotism in principle. In prac- 
tise, the participation of the Earldormen, Bishops, Royal 
Theyns, and larger landholders in the Assemblies and the 
possible participation of all freemen therein served to limit, 



122 GOVERNMENT AND LIBERTY 

in some degree, the power of the King, especially over the 
members of the higher classes in the society. It did not, 
however, always serve to limit the despotism of the Govern- 
ment as a whole. It could never do so, when the Govern- 
ment as a whole was disposed to exercise despotic power, 
and this, with some notable interruptions, has been the 
nature of the much- vaunted English Liberty to this day. 

After the union of the seven Kingdoms under the rule 
of the house of Wessex, King Alfred, who was a statesman 
of the order of Charlemagne, and who had, undoubtedly, 
an extensive knowledge of the Carolingian Constitution, 
conceived a system for England quite similar to that in- 
vented or developed by the Great Caroling. King Alfred 
evidently regarded his sovereign authority as the basis of 
the Individual Liberty of his subjects as well as of his 
Government over them. It was in this conception rather 
than in anything and everything else that his superior 
statesmanship manifested itself. At the same time that 
he perfected his governmental arrangements, he adopted 
the institution of the Carolingian Missi, under the name of 
Fideles, for England and vested in these circuit Judges, so to 
speak, consisting of both laymen and churchmen, the power 
and imposed upon them the duty of protecting the consti- 
tutional or customary Liberty of the Individual against 
the arbitrary power of the governmental Officials. Exactly 
how far their power extended is difficult to tell. It seems, 
however, that they could nullify everything short of the 
King's edicts issuing from the Witenagemot and his express 
administrative commands. Here was, however, the weak 
spot. A King like Alfred might distinguish between his 
power as Sovereign and his power as Government and de- 
fend the Liberty of the Individual against the latter while 
holding it subject to the former, but the ordinary Monarch 



THE EFFORT OF EUROPE 123 

could or would never do any such thing. In such a con- 
nection the Government of the ordinary monarch will 
always become, both in principle and practise, despotic. 
Naturally, this system of the Fideles disappeared with the 
Great King who adopted it. 

The Danish invasions which began before the reign of 
Alfred, that is before the last quarter of the ninth century, 
and extended through the tenth, ending with the temporary 
conquest of all England by the Danes and the temporary 
reign of the Danish Royal House, did not alter materially 
the constitutional situation in regard to the subject we are 
considering. The Danes were so akin to the Jutes, Angles, 
and Saxons in race and civilization that they readily adopted 
the Anglo-Saxon institutions and customs in England, even 
embracing the Christian religion and acknowledging and 
protecting the English Church with its existing organiza- 
tion. 

The two chief results of the Danish invasions and the 
short reign of the Danish Royal House were, first, the in- 
crease of the personal following of the King. In resisting 
the Danish incursions the house of Wessex, the Cerdics, 
found their opportunity for expanding Wessex until it be- 
came England. The smaller Kingdoms of Kent, Essex, 
Sussex, and East Anglia were unable to defend themselves 
and were obliged to lean upon Wessex, with all which that 
implies. Moreover, the Danes were, at the outset of the 
invasion, still heathen, and the Church throughout these 
weaker Kingdoms in the East looked to Wessex for protec- 
tion. As Wessex grew thus into England through military 
and ecclesiastical causes, the Kingship of Wessex grew 
stronger and more stable as well as more universal. The 
body of King's Theyns grew immensely, this body of im- 
portant men attached to the King by personal ties and 



124 GOVERNMENT AND LIBERTY 

pledged to him in superior loyalty. In other words, the 
relation of Lord and Vassal supplanted that of Sovereign 
and Subject in regard to an important part of the member- 
ship of the state. This fact is connected with the topic 
of this treatise in that the Theyns were members, and ever- 
present members, of the Witenagemot and majorized the 
other, only a little more independent, elements therein. 
The protection of Individual Liberty through the partici- 
pation of the subject in the Government, through Self- 
Government, became thus entirely lost, as the decrees of 
the Witenagemot, voted by the Theyns, were, virtually, 
the decrees of the King himself. This had, however, sub- 
stantially happened before the Danish invasion began. 

The second result of the Danish supremacy was purely 
administrative. The Danish Kings divided England into 
four great Earldoms, East Anglia, Wessex, Mercia, and 
Northumberland;, and placed an Earl or a sort of Viceroy 
over each, that is, they interposed a set of administrative 
Officials between the Earldormen of the shires and the King. 
The eflect of this was rather to weaken the Kingship by the 
creation of such powerful local rulers over such large terri- 
tories and populations, and to train up personalities, who 
might become candidates, so to speak, for the Royal office. 
It will be remembered that Godwin, King Harold's father, 
was the Earl of Wessex, but was not of the house of Cerdic. 
The restoration of the Wessex house in 1041 brought no 
change in the Constitution concerning our subject of dis- 
cussion; but the transfer of the Royal power from West- 
Saxon to Dane, and from Dane to West-Saxon, and from 
the Cerdics to the Godwins, had demoralized the Royal 
tenure and opened the way for the Norman Conquest. 

Anglo-Saxon Liberty is thus seen to signify political 
rather than civil Liberty, the joint liberty, so to speak, of 



THE EFFORT OF EUROPE 125 

the subjects of Government to participate in the operations 
of Government, rather than a sphere of Individual Im- 
munity from Government, protected by an organized 
power. The Government as a whole was unlimited and 
the Immunity of the Individual from governmental power 
in any respect depended simply upon the benevolent dis- 
position of the Government itself, and not upon a sovereign 
power back of the Government placing limits upon the 
powers of the Government and furnishing the means for 
their enforcement. This is certainly a rude and unsatis- 
factory solution of our problem, if indeed, any solution at 
all. We must look further, much further, for that solution 
both in EngHsh history as well as elsewhere in Europe and 
perhaps we shall not find it there at all. 



CHAPTER VII 

THE MIDDLE AGES 

It is very difficult, not to say impossible, to give a dis- 
tinct date to the beginning or the end of the Middle Ages, 
nor is it for the purposes of this study necessary. We are 
dealing with institutions rather than with chronology. 
From this point of view, we may define the Middle Ages 
as that period in the development of the civilization of 
Europe, when the Feudal System and the Roman Church 
dominated the Monarchy and the people, and when the 
method of thought in every direction was theological. All 
the terms of this definition require considerable explanation. 

First, what was the Feudal System? 

What it was can be best understood by a brief historical 
survey of its origin and growth. It must be always kept 
in mind that the Roman Empire was a vast union of cities, 
originally independent of each other and sovereign and then 
reduced by the Constitution of the Empire to the position 
of local administrative bodies, municipalities, the Imperial 
Governments having assumed the sovereignty and the po- 
litical power for the whole. It must be likewise kept in 
mind that the old Germanic state was rural, agricultural, and 
pastoral and that no cities existed among the ancient Ger- 
mans, and lastly, it must be kept in mind that when the 
Germanic tribes overran the Romanic lands, they brought 
with them their aversion to city life and that when they 
settled down territorially, they did so outside of the limits 
of the towns upon the open country and returned to agri- 
cultural life. 

126 



THE EFFORT OF EUROPE 127 

A vast quantity of the land of the Roman provinces had 
never been reduced to cultivation or even to private own- 
ership. It was Imperial domain. The German tribes oc- 
cupied it and it was, as we have seen, parcelled out among 
the Chiefs and their followers. The tenure of such land 
was what we call allodial. It was even a freer tenure than 
our allodial tenure, since no relation whatsoever to the 
state or its head was established by it. It was this kind of 
tenure which exhausted the domain of the Merwings and 
led to their impoverishment and downfall. The Carolings 
profited by this experience. When they gave land out of 
the Royal domain they required some kind of continuous 
service for it and limited the time of holding it to the life- 
time of the immediate recipient. The Bishops of the 
Church and the large landholders had already set the ex- 
ample for this in the granting of benefices, as it was called, 
or the leasing of land. As the Royal power grew weaker, 
the Bishops and the large secular Landlords were able to 
induce a larger and larger proportion of the smaller land- 
holders to accept their protection and pay for the same by 
giving up the fee of their lands, as we would say, but re- 
taining the possession and use of them, rendering some 
service or tribute, great or small, in recognition of the 
Lord's ownership. The possessors of such lands, having 
been the original owners in full, claimed the right of trans- 
mitting this possession to their heirs, and this right was 
acknowledged by the Lords from the first. Step by step 
all the land in a locality was brought into this relation to 
the chief Landowner in the locahty, and all Europe was 
divided up territorially into these large landed estates, each 
the property of some secular or ecclesiastical personage. 
The estate of a great Landlord consisted thus partly of land 
which he held both in ownership and possession and 



128 GOVERNMENT AND LIBERTY 

worked by his own peasants and slaves, partly of land which 
he owned, but the possession of which was held for life by 
another as benefice, and partly of land which he owned, 
but the possession of which was held by another and trans- 
missible to his heirs, since it was originally owned by the 
beneficiary and transferred by him to the Lord in order to 
secure protection for his possession and use of it. 

Again, estates inland were connected with the offices of the 
Crown as salary, so to speak, for the Officials. The Counts 
especially were compensated in this way. They worked 
estates, in part by slaves and peasants and gave them out 
in part as benefices, receiving certain services or tribute 
in return. They also increased their estates by according 
special protection to the small landowners around them 
and obtaining for such protection the fee, as we would say, 
of these lands, the original owners retaining the possession 
and use of them, and paying service or tribute, generally 
of a light nature. The lands thus acquired by the Counts 
were their own private property and not a part of the offi- 
cial estate held of the King as salary of office. These lands, 
however, soon exceeded in extent the official estates and 
the Counts finally succeeded in making not only their 
official estates, but also their offices hereditary, that is, 
succeeded in transforming office and the salary of office 
into private property. With such official and property 
power they then sought to impose upon all the other Land- 
lords of the county the fiction that they held their estates 
as fiefs of the Count and succeeded in doing so in greater 
or less measure. 

Then the Dukes and Margraves, where such existed, 
sought to bring the Counts and all the other Landlords not 
subject to the Counts into the relation of Under-Lords of 
the soil to them. Finally the Kings sought to estabhsh 



THE EFFORT OF EUROPE 129 

the like immediate relation between themselves and the 
Dukes, Margraves, unmediatized Counts, and independent 
Landlords. The success in both of these cases was only 
partial and the bond of connection was weak and attenu- 
ated. Gradually but surely this relation of Lords of the 
soil and Vassals, mediated chiefly through the holding of 
land by the latter from the former, was substituted for the 
older relation of Sovereign and Subject. 

At last the Lords of the soil, both those who held of 
greater Lords and those who held of the Kings, claimed 
and maintained immunity in their estates against the 
regular Officials of the Kings, i. e., they claimed what was 
called independent Manorial jurisdiction over the inhabi- 
tants of their several estates. In this way the Royal 
official administrative divisions were broken through and 
destroyed by the lines of the Manorial estates. The lines 
of these estates became now the local governmental bound- 
aries, and these Manorial jurisdictions became more than 
local Governments in most cases, and, in some cases, be- 
came the lines of general Government and, practically, of 
sovereignty. 

Such was the result of the first attempt to organize 
Government for the country as distinguished from the city. 
Everywhere rose the castles and strongholds, inhabited by 
the Lords of the soil and their families, domestic servants, 
and personal attendants, around which, usually at the foot 
of the eminence upon which the castle stood, were the vil- 
lages of peasants and serfs, who worked the lands of the 
Lord not given in fief to Vassals. Farther out lay these 
fiefs. In this manner the soil was brought under cultiva- 
tion, the cultivators protected and governed, and the 
products of husbandry secured against pillage and theft. 
Agriculture grew rapidly to be the predominating factor 



I30 GOVERNMENT AND LIBERTY 

in the economy of the state, and the Landlord became the 
chief power in the state. 

But let us examine, in the second place, the effect of this 
development upon the Monarchy. Charlemagne trans- 
mitted the Monarchy, intact and strong, to his only sur- 
viving son Louis, called the Pious, in 814. Eight years 
before his death he had bestowed Kingdoms on his three 
sons, Charles, Pippin, and Louis, without making any pro- 
vision about the succession to the Imperial office. The 
death of Charles and Pippin before his own restored the 
unity of the entire Empire in the hands of Louis, except 
Italy where Bernhard, Pippin's son, had by permission of 
Charlemagne succeeded his father. 

From the first day of the reign of Louis the Pious the 
relation to Bernhard and Italy was the weak spot in the 
new Emperor-King's administration. Bernhard's idea was 
that he was entirely independent of Louis's Government, 
while Louis rightly conceived that as Emperor he was 
Bernhard's sovereign. In 817 Louis made his first disposi- 
tion of the succession. He designated his eldest son, 
Lothair, as his successor to the Imperial office and as imme- 
diate ruler or King over the larger part of the Empire. 
He gave Aquitania as a Kingdom to Pippin and Bavaria 
to Louis, leaving Bernhard in Italy, all these to be subject 
in some sense to the Imperial sovereignty of Lothair. This 
was a statesmanlike conception, but it did not suit the 
wishes of Pippin or Louis or Bernhard. Moreover, the 
Emperor Louis the Pious married a second wife, who bore 
him a son Charles, named the Bald, for whom the Emperor 
modified the arrangement of 817, in order to construct an- 
other Kingdom, over which Charles should reign. This 
furnished a new source of discord. Insurrection after in- 
surrection against the Emperor by his sons hastened his 



THE EFFORT OF EUROPE 131 

death in 840 and led to the overthrow of the Imperial 
system of Charlemagne altogether and to the division of 
the Empire into the Kingdoms of West Francia or France, 
East Francia or Germany, and Italy. This was consum- 
mated in final form by the compact of Mersen in 870, be- 
tween Louis the German King of East Francia and Charles 
the Bald, King of West Francia, leaving Louis II, son of 
Lothair, as King of Italy. 

The members of the Carolingian House were now in 
constant war with each other and they were obliged thus 
to recruit and hold large bodies of armed men and provide 
for their sustenance. In almost all cases this was paid for 
by new grants of lands out of the Royal domains in fief, or 
by increasing the privileges and immunities attached to 
fiefs already granted. 

In the year 888 the Carolingian dynasty became extinct 
in Italy, in 911 in East Francia or Germany, and 986 in 
West Francia or France. In each of these Kingdoms the 
sovereignty now passed to the aristocracy of the great 
Feudatories, and the immediate problem for these was 
now whether to leave the thrones unoccupied and them- 
selves govern in entire independence, each in his own 
estate, or to choose a new King. The conditions and ideas 
of the time favored the latter course. The Saracen inva- 
sions from the South, the Northmen invasions from the 
North, the internal strife over rights and possessions, the 
necessity of having a logical and moral basis for the feudal 
properties, powers, immunities, and privileges, all pointed 
to the organization of the great Feudatories and their 
choice of a new representative of unity, a visible basis of 
title and authority. 

The great Feudatories of Italy chose Beringer, Duke of 
Friaul, those of Germany chose Conrad, Duke of Fran- 



132 GOVERNMENT AND LIBERTY 

conia, and those of France chose Hugh Capet, Duke of 
the Isle of France. Naturally they imposed upon the new 
Kings limitations^ the chief of which were the recognition 
of the hereditary tenure of their estates and oflSces and of 
their local governmental powers within their estates and 
districts. 

The new Monarchy was now distinct from the old in 
many respects. It did not have the sovereignty; that was 
in the body of the Feudatories. The form of state was now 
aristocratic. The new Monarchy was indivisible. It was 
not family property. It was clearly office. The new Mon- 
archy was not heritable. The incumbent held for a term, 
not longer than his own life, and might be deposed by the 
body which chose him. Lastly, the new Monarchy was 
strictly limited and moved within narrow bounds. The 
new King was thus the territorial Lord-in-Chief of a body 
of Feudatories, related to them not as Sovereign to Subject, 
but as Lord to Vassal, the terms of the relation being de- 
fined by the compact or contract in the grant of the fief 
on condition of service or tribute, or both, and by the so- 
called Electoral Capitulation imposed by the body of Feuda- 
tories at the coronation, and he was cut off by the Feuda- 
tories from any direct relation to the great mass of the 
population who lived as subvassals, serfs, or slaves to them. 
The powers of the King were reduced thus to a minimum, 
and the Liberty of the Feudatories was expanded to a 
maximum. It was so excessive as to threaten anarchy 
all along the line, while the great mass of the population 
were subject to the unlimited Government over them of 
the Lords of the soil. 

The King, it is true, also held vast estates worked by 
serfs and slaves, and here he governed without limitations, 
while outside of these districts his Government was almost 



THE EFFORT OF EUROPE 133 

non-existent. His Counts and other Officials had become 
Feudal Lords, holding their offices as well as the estates at- 
tached to them as family property, to be transmitted to 
their heirs. They felt their interests to be with the Feuda- 
tories rather than with the King. 

In England feudalism did not reach the excess of political 
decentraUzation attained on the Continent. The Duke of 
Normandy, one of the strongest and most defiant Vassals 
of the King of France, had been eye-witness to, and par- 
ticipant in, the weakening of the Monarchy in France and 
elsewhere on the Continent and when in 1067 he became 
King of England he imposed such modifications upon the 
system as would safeguard the Crown against this fate. 
It cannot be said that Duke William introduced the Feudal 
System into England. As we have seen, it had made a 
very considerable development under the Anglo-Saxon 
Kings, and was in Anglo-Saxon England of the same threat- 
ening character to the Monarchy as upon the Continent. 
Duke William or King William, by assuming all the folk- 
land of England as King's land, as well as the estates of 
the Anglo-Saxon Kings, and by confiscating the estates of 
all of the Anglo-Saxon Lords who had opposed his claim to 
the Crown of England, held as immediate Landlord about 
all the land of England, except what was in the hands of 
the Church. He then bestowed this land as fief upon his 
Norman followers chiefly, permitting them, it is true, to 
subinfeudate their estates, but requiring of every sub- 
Vassal, as well as of every immediate Vassal, the oath of 
primary loyalty to himself. Finally, he maintained, as 
Sovereign over Subjects, as King in the original sense, an 
official system separate from, and independent of, the 
Feudatories, the County Sheriff system, and broke up the 
great Earldoms of the Anglo-Saxon period into Counties. 



134 GOVERNMENT AND LIBERTY 

He was thus immediate Feudal Lord of the most of Eng- 
land and thereto exercised the Royal powers of Sovereign 
over Subject. This maintained the unity of England dur- 
ing the Feudal period, while anarchy, or something very 
like it, prevailed on the Continent. When the Barons of 
England successfully defied their King under the reign of 
the weak John, they did so as a united organized body, 
claiming to represent the whole body of subjects, and the 
Charter which they extorted from him was for the benefit 
of all freemen in England. They also selected a Standing 
Committee of the strongest and most intelHgent among 
themselves and vested it with the power and imposed 
upon it the duty of holding the King to his promises. So 
long as this Committee remained extra-governmental, Eng- 
land had a constitutional guarantee of Individual Liberty; 
when, however, the Lords assumed the legislative power of 
Government, the Individual had nowhere any guarantee 
against the whole Government in the enjoyment of that 
Liberty. 

In order to complete the picture of the Middle Ages, 
however, we must now follow the ecclesiastical develop- 
ment from the death of Charlemagne to the completion of 
the Papal system of the Church. 

As we have seen, the Church in the time of the Great 
Emperor had reached the condition of complete hierarchic 
organization under the headship of the Bishop-Patriarch 
of Rome. Even before the downfall of the West Roman 
Empire, the laymen had lost their early right of participa- 
tion in the choice of the Clergy, and the Clergy had become 
a separate and independent body, cooptating themselves, 
educating themselves, and investing themselves with oflEice 
and power, the lower Clergy electing the Bishops and the 
Bishops appointing the lower Clergy. 



THE EFFORT OF EUROPE 135 

When the Barbarians overran the Empire they found the 
Church, thus, so compactly and independently organized 
that the destruction of the Empire did not involve the de- 
struction of the Church as one of its institutions. More 
than that, the Church was prepared, under its independent 
hierarchic organization, to bring the Barbarians, through 
the form of conversion at least, under its great moral and 
disciplinary power and influence. In the centuries after 
the fifth, the world-historic meaning of the change from 
the democratic Church of the Apostolic era to the hierarchic 
Church of the fifth century became manifest. Under the 
original form of organization the Church could never have 
done its great work in subduing and disciplining morally 
the Barbarians. On the other hand, they would have 
ruthlessly trampled it underfoot. In the fierce struggle 
with the paganism of the Teutons nothing but its indepen- 
dent hierarchic organization could have brought it victori- 
ously through, and after it had triumphed over Teutonic 
paganism nothing short of this organization could have 
preserved the Church against the Arianism of the new con- 
verts. However much we may deplore the loss of the orig- 
inal democratic organization of the Christian Church and 
the participation of the layman in its Government, still we 
must say that the change was historically justified. So 
far as mortal eye can see Christianity would have gone 
down with the Roman Empire except for the compact, 
hierarchic, independent organization effected chiefly by 
Bishop Cyprian in the third century of its existence. We 
are also obliged to admit that the demoralization of the 
Church under its Episcopal organization in the Mero- 
vingian Kingdom, when the Frankish Bishops became al- 
most indistinguishable from the Lay-Lords of the Manors, 
justified, yes required, the creation of the Archiepiscopal or- 



136 GOVERNMENT AND LIBERTY 

ganization and the Monastic orders, chiefly the Benedictine 
order, under the control of the Bishop of Rome, in order 
to re-establish a stronger unity in the Church and purify 
the Clergy of their worldly character and practises. As we 
know, the Carolingian Kings and the great Emperor him- 
self approved all this as in the interest of general civiliza- 
tion and we Protestants only show our misunderstanding 
of the necessities of the time when we condemn it. We 
know, still further, that the Bishop of Rome and his 
Archbishops and Monastics were the chief power in setting 
the Carolings upon the Frankish throne and upon the 
throne of the Holy Roman Empire, and that it was the Caro- 
lings themselves who created the temporal power of the 
Bishop over the Exarchate of Ravenna, the so-called States 
of the Church. 

It cannot be said that during the lifetime of Charlemagne 
the Bishop of Rome was the Sovereign of the Exarchate. 
The Emperor considered himself alone the Sovereign there 
as elsewhere in the Empire. The Emperor looked upon 
the States of the Church as he did upon the Dukedom of 
Benevent, as a sort of local Government within his sover- 
eignty, or as a fief of the Empire, but never as an inde- 
pendent state. I do not think it could be said that the 
Bishop of Rome himself, at that time, claimed that he was 
independent of the sovereignty of the Emperor. The 
Bishop of Rome followed an Imperial policy during the 
reign of Charlemagne, not a states'-rights policy, as we would 
say. He continued to follow this Imperial policy during the 
reign of Louis the Pious and also in the reign of Lothair I, 
until Lothair himself showed himself untrue to the Church 
by promising the Saxons to allow them to restore their 
ancient heathenism. Then the Roman See and the entire 
Clergy turned against Lothair and the Empire and em- 



THE EFFORT OF EUROPE 137 

braced that states'-rights policy which characterized the 
Church throughout the entire Middle Ages. 

It must be always understood that this states'-rights 
policy applied only to the secular Government. The 
Church itself became in its own organization imperialistic. 
The Church undertook to supplant the Empire as represent- 
ing the unity of Europe. The Church organization passed, 
after the downfall of the Carohngian Empire, into the stage 
of the Papacy of Rome. Nor was this less a necessity of 
the times than was the independent hierarchic organization 
of the preceding period. It was necessary to civilization 
to preserve the unity of Europe, especially of Christian 
Europe. The secular power had shown itself incapable 
of doing it. The Church must do it, if it was to be done 
at all. It was also necessary that the head of the Church 
should be exempt from the sovereignty of any barbaric 
secular Prince, such as Lothair or any of the whole race of 
them. In a word, the Papacy of 850 was, under the condi- 
tions of the age, a logical result, a necessity of history, a 
great step forward in civilization. Bad as the Popes, the 
Bishops, and the Clergy often were, they were far better 
than the Barbaric Chiefs who passed as the state, engaged 
always in war, murder, pillage, robbery, rape, and de- 
bauchery. In spite of its hierarchic organization, the 
Church represented the people in a far truer sense than the 
secular Government did. The Clergy were recruited from 
all classes in the society and the lower Clergy were almost 
always of the people and were participant in the feelings, 
grievances, aspirations, and hopes of the people. The in- 
telligence, morality, and character of Europe were in the 
Church. The secular Government was brute force exer- 
cised by a mere handful of reckless men banded together 
for war and plunder. Civilization required, therefore, that, 



138 GOVERNMENT AND LIBERTY 

in this period of human development, the Church should 
control secular Government and restrain it in behalf of 
peace, unity, justice, and Individual Liberty. 

The first real open contest between the Church and the 
secular Government — I will not call it the state — for the 
supremacy was the celebrated divorce case of Lothair II, 
son of the Emperor Lothair, and King of Lorraine. This 
brutal, shameless Prince brought false accusations against 
his faithful wife, Teutberga, in order to drive her from him 
that he might take a doubtful character, one Waldrada, to 
be his Queen. He first imposed the heathen ordeal of 
boiling water upon her, through which her representative 
came unharmed. He then called a Synod of the Clergy 
of Lorraine, and induced them to pronounce Teutberga 
guilty and annul his marriage to her. Another Synod of 
the same Clergy was induced to give consent to his taking 
Waldrada. This happened in the year 862. Teutberga 
appealed her case to the Bishop of Rome, Nicholas I, against 
both the King and the Lorraine Synod. The Bishop sent 
two Legates to examine into the merits of the case. They 
were bribed by the King to report in his favor. Nicholas 
was not, however, deceived. He assumed jurisdiction over 
both the Lorraine Synod and the King, nullified the decrees 
of the Synod, and forced the King to put away Waldrada 
and recognize Teutberga as his legitimate wife and Queen. 
Had Nicholas lived he would doubtless have deposed the 
King, but his death in 864 left the matter in the hands of 
his successor, Adrian II, who did not possess the indomitable 
will of Nicholas and who was made subject to pressure by 
Teutberga herself, who now asked for the divorce in order 
to be free from the persecutions of the King. Adrian 
would not, however, grant it. He maintained the juris- 
diction of the Pope — we will hereafter term the Bishop 



THE EFFORT OF EUROPE 139 

Pope, since his now established jurisdiction over the Kings 
added the final element to the Papal idea — in matters of 
divorce over the Kings, although he did not undertake to 
depose the recalcitrant King. The death of the King in 
869 put an end to the controversy. The Papal power was 
now complete. It included the headship of the entire 
orthodox Christian Church, the sovereignty over the States 
of the Church, and jurisdiction over the secular Rulers in 
all matters of a religious or moral nature. 

The threatening anarchy in Italy, during the first half 
of the tenth century, drove the Popes over again to the 
plan of the Saxon Kings of Germany for restoring the 
Empire over Germany and Italy and in 962 King Otto I 
received the Imperial Crown at the hands of Pope John 
XII, establishing thus the Holy Roman Empire of the 
German Nation, which existed under varying fortunes 
down almost to within the memory of some who live to-day, 
down to 1806. 

Under the imperial reign of Otto I, Otto II, Otto HI, 
and Henry II, i. e., from 962 to 1024, the Popes, the Eccle- 
siastics generally, and the Emperors worked together with 
good understanding and good-will for the advancement of 
civilization. 

The canker in the body of the Church had been the con- 
ferring of the episcopal office upon lay Vassals by the 
Kings and the rendering of service or tribute by these 
Vassals to the Kings for their possession of the Church 
properties, i. e., simony. Under these four Emperors this 
practise, while not entirely discontinued, was largely mini- 
mized. Under the Emperor Conrad II, elected German 
King in 1024 and crowned by the Pope as Emperor in 
1026, the old practise was again resumed and simony be- 
came again a deadly disease in the Church. Conrad's 



I40 GOVERNMENT AND LIBERTY 

son, Henry III, who succeeded his father to the German 
Kingship in 1039, reversed again the poHcy of his father in 
regard to this burning question and showed himself so 
conscientiously zealous in the reform of the Papacy and the 
whole Church that the Romans in 1046 conferred on him 
as Emperor the right to appoint the Pope. This was cer- 
tainly a great mistake and it is probable that this incon- 
siderate act on the part of the Romans excited in the mind 
of the great Papal secretary, Hildebrand, the idea of free- 
ing the choice of the Papacy both from the Romans and 
the Emperor. Certain it is that he must have revolved 
this idea in his mind about as early as this, for it was only 
about twelve years later that he brought forth his propo- 
sition in the Lateran Council of 1059, and it must have 
taken as long as this, in the slow methods of communica- 
tion then practised, to have matured this plan and have 
secured the necessary adoption of it by minds so far apart 
geographically. 

This plan, there and then adopted as the fundamental 
law of the Church, provided for the election of the Pope 
by the Cardinal or principal Bishops, Presbyters, and Dea- 
cons of the larger Diocese or perhaps the Archdiocese of 
Rome. At first something was contained in the law of 
Papal election about confirmation by the Emperor but this 
was soon omitted and the proposition of Hildebrand stood 
forth stripped of all limitations and ambiguity. It was 
simply that the election of the Pope should be an internal 
Church affair, freed from any interference by either Em- 
peror or the lay citizens of Rome. The plans of Hilde- 
brand went still further than this. He would free not 
only the Pope from the power of the Government in his 
choice and in the administration of his office but all the 
Bishops and Church officials, and would divorce all these 



THE EFFORT OF EUROPE 141 

oj6&cials from the lay society by the rule of celibacy. It is 
not my purpose to relate the history of the struggle with 
the secular power to secure these ends. The point of im- 
portance in connection with our subject is the appreciation 
of the necessity of just these reforms in the Church in order 
to enable it to become a real protector of Individual Liberty 
against the despotism of secular Government. It was just 
the appointment of Church officials by Emperor, Kings, 
and Lay-Lords and their investiture with property by the 
secular powers which had led to the secularization and 
corruption of the Church and had made of it an institu- 
tion more interested in tyrannizing over the Individual than 
in protecting him against the tyranny of the secular Gov- 
ernment. In fact there was in the middle of the eleventh 
century very little distinction between Lay-Officials and 
Church-Officials. Many of the Bishops were not Ecclesias- 
tics at all but laymen, laymen of the most vicious, cruel, and 
dissolute sort. The Church had become barbarized by the 
Feudal System. As we know, according to the principles 
of that system, office had become the incident of property. 
He who conferred the property, therefore, conferred the 
office. The Emperor and the Kings could, thus, create 
Bishops of their own appointment by selecting certain per- 
sons and conferring upon them the fiefs held by the Church 
in the several Dioceses from the Crown. The great diffi- 
culty in realizing the plans of Hildebrand was, therefore, 
the question of the properties held by the Church from the 
Crown. The Emperor and the Kings would not allow the 
Church to keep the Crown properties without having some- 
thing to say as to who should hold and administer them, 
and the Bishops were unwilling to surrender these properties 
to the Crown and rely wholly upon the offerings of the 
faithful. 



142 GOVERNMENT AND LIBERTY 

For fifty years and more the struggle of ideas went on 
and frequently degenerated into actual battle and the reck- 
less shedding of blood. By the help of the Normans of 
Sicily, the Countess of Tuscany, the Saxons, and the An- 
archists of Milan, the great Pope, Hildebrand, Gregory VII, 
who would neither hear to the appointment of the Bishops 
and Abbots by the secular power nor to the surrender of 
the Royal fiefs held by them, brought the King, Henry IV, 
to his feet. Then the fortunes of the King came to the 
ascendant and Gregory was forced from Rome. A Pope, 
Clement III, chosen at a rump Synod held at Mayence, 
was placed by the King on the Papal throne, the King was 
crowned Emperor by him, and Gregory died in exile at 
Salerno. Then Prince Conrad, the Emperor's first-born, 
turned against his father and caused himself to be crowned, 
in Milan, King of Italy by the help of the Saxons and Tus- 
cans and broke the Emperor's heart. His second son, 
Henry, to whom he turned for help and consolation, followed 
the example of his elder brother and the miserable Emperor 
died in the deepest sorrow in the year 1106. 

In the meantime the new Pope, Urban II, had sought to 
turn the rage of the contending factions against a foreign 
land. He first stirred Christendom to undertake the Cru- 
sades for delivering the sepulchre of the Saviour from prof- 
anation by the infidel. Of course, there was a religious 
purpose in these movements and in the minds of those 
who excited them, but I cannot help seeing in them a deeply 
laid political purpose also for clearing Europe, in some de- 
gree at least, of the belligerent Princes and Nobles and 
giving the Church a better chance for success against these 
in the struggle over the right of investing the Clergy with 
their offices and estates. They certainly had this result. 

During the first twenty years of the twelfth century the 



THE EFFORT OF EUROPE 143 

Church grew in strength and finally wrung from the Em- 
peror, Henry V, the Concordat of Worms of the year 11 22. 
In this fundamental compact the Church won its conten- 
tion for the right of independent choice of the Pope and the 
Bishops and Abbots by the Clergy. The office was dis- 
tinguished from the fiefs held by the Ecclesiastics and the 
fiefs were made incidental to the office instead of the office 
being incidental to the fiefs. The Clergy of the diocese 
should choose the Bishop and the Cardinal Clergy of the 
Roman Archdiocese should choose the Pope. The secular 
Princes ceased to invest with ring and crosier, i. e., ceased 
to confer the ecclesiastical office, and conferred the fiefs by 
the symbol of the sceptre; the rule of cehbacy was enforced, 
thus preventing the inheritance of the fiefs by the heirs of 
the Clergy; and the Pope ruled as Sovereign over the 
States of the Church. 

Many historians bemoan the Concordat of Worms as 
an error of history. I do not. I do not think that his- 
tory in a large sense makes errors. I think that men make 
errors in their misunderstanding of the true sense of the 
historic movement. I think the Concordat of Worms was 
a great progressive step in the march of civilization. It 
rescued the Church from secularization. It divorced the 
interests of the Prelates from those of the secular Princes 
in the exercise of despotic secular powers over the people. 
It brought the Church back again, in some degree at least, 
to its original position of a great cosmopolitan institution 
for the defense of the weak, the poor, and the downtrodden 
against the arbitrary and cruel power of the secular Gov- 
ernment. 

It was not to be expected that the Emperor, the Kings, 
and the secular Lords would easily accommodate them- 
selves, however, to this order of things. The great phi- 



144 GOVERNMENT AND LIBERTY 

losopher of history, Hegel, said that nothing is ever consid- 
ered as historically settled until it repeats itself. The 
agreement at Worms was no exception to this rule. So 
soon as a powerful personality should wear the Imperial 
Crown it was practically certain that the struggle over the 
question of the investiture of the Clergy would be opened 
again. 

On the 4th of March, 1152, Frederick, Duke of Suabia, 
known in history as Barbarossa, was elected German King 
and the battle was almost immediately renewed. It is 
not my purpose to follow the historic course of this great 
conflict. For our purpose it is sufficient to say that, suc- 
cessful at first, the King-Emperor finally found his match 
and superior in Pope Alexander III, and that the Emperor 
was not only forced to acknowledge the independence of 
the Papal tenure, the sovereignty of the Pope over the 
States of the Church, and the agreement at Worms con- 
cerning the investiture of the Clergy, but also the pre- 
cedence of the Pope over the Emperor, the superiority of 
the Spiritual power over the secular, and the independence 
in local Government of the North Italian cities. 

Once again, however, in the reign of the Emperor Henry 
VI, Barbarossa's son, the Imperial power seemed about to 
regain its old supremacy over the Papacy and the Church, 
only to fall again, in the reign of Frederick II, and during 
the Papal regime of Gregory IX and Innocent IV, into 
deeper decay. All that Barbarossa had conceded was 
again ratified and in addition to that the Emperor was 
compelled to acknowledge, in the Charter of 1220, the 
autonomy of the Bishops and Abbots, the ecclesiastical 
Princes, within their jurisdictions, and by that of 1232 the 
like autonomy of the secular Princes, making of the Empire 
thus a federal system of Government, with the sovereign 



THE EFFORT OF EUROPE 145 

power as a shadowy something claimed by both Pope and 
Emperor, but in the general opinion rather accorded to 
the former as the representative of the Spiritual power in 
its supremacy over the temporal. 

In France the claims of the Church were developed and 
advanced likewise upon the basis of the principles of Pope 
Gregory VIL The tenure of the Church officials was grad- 
ually wrenched from the feudal control of the King and 
Lay-Lords; the independence of the Papacy and its sover- 
eignty over the States of the Church recognized; the celi- 
bacy of the Clergy enforced, and the jurisdiction of the 
Church over the domestic relations maintained and widened. 
There was here no Emperor with his claim of sovereignty 
over the Christian world with whom the Pope had to con- 
tend and there was little question that the Church took 
precedence over the secular Government. The Capetians 
were engaged in the work of establishing their tenure by 
hereditary right to the Royal power and they saw correctly 
that they must preserve the friendship of the Pope and the 
Clergy in order to attain this end against the opposition 
of the Feudal Lords. Even the great King Philip Augustus 
was compelled to yield to the commands of the Pope in 
his attempted divorce of his Queen under the fascination 
of the beautiful Agnes of Meran, and remain, at least out- 
wardly, faithful to his lawful spouse. 

It is true, however, that in the reign of Philip Augustus 
(1180-1223) foundations were being laid for a clearer dis- 
tinction between the powers spiritual and the powers tem- 
poral which would preserve the secular Government in 
France against the extravagant claims of Gregory IX and 
Innocent IV. These consisted in the establishment of the 
University of Paris, the revival there of the study of the 
Roman Law under instructors brought over from, or at 



146 GOVERNMENT AND LIBERTY 

least educated in, Bologna and the development of the 
class of legists or lawyers. Under the influence and direc- 
tion of the lawyers, King Philip and especially King Louis 
IX (1226-70), Saint Louis, organized the law courts, 
known as the Parhament of Paris and its branches. King 
Louis also restored the Missi Dominici of Charlemagne. 

It is easy to see how a revival of the knowledge of the 
Roman Civil law would favor the development of ideas 
hostile to the claim of the Popes and the Church that the 
spiritual power was superior to the temporal in secular 
affairs, and also to the claim of the Roman Papacy to an 
unlimited power over the Galilean Church. The fruits of 
this development, however, came later, at the beginning 
of the fourteenth century, under the reign of Philip the 
Fair, who was able to vindicate the independence both of 
the French Monarchy and the GalUcan Church against the 
assertions of supremacy over both by the great Pope Boni- 
face VIII. This was, however, a first step out of the 
Middle Ages and belongs rather to the next period in the 
development of the European state. 

In England the Church, during the Anglo-Saxon period, 
was, as we have seen, though the daughter of Rome, some- 
what more independent of Rome than the Continental 
Churches, nevertheless it was the most powerful institu- 
tion of the Anglo-Saxon state. It held one-third of the 
landed property of England; it controlled the domestic 
relations of the people; and its Bishops, Abbots, and 
Priests shared with the King, the Earldormen, and the 
Theyns the entire Government of the Kingdom. In order 
to bring the Church in England more completely into the 
Papal organization, the Pope had sanctioned the conquest 
by the Norman Duke. So soon as the conquest was ac- 
complished, the Pope and the King placed the Norman 



THE EFFORT OF EUROPE 147 

Prelate Lanfranc in the Archiepiscopal seat of Canterbury 
and imposed upon him the task of Normanizing the Church 
in England. This work was carried rapidly forward, and 
in a short time Norman Prelates occupied most of the im- 
portant places in the Church. 

King WilHam, however, tried to maintain for the Royal 
prerogatives the power exercised by the Anglo-Saxon Kings 
of the appointment of Bishops and Abbots and of vetoing 
the canons adopted by the Clergy. The Bishops and 
Clergy generally were inclined to yield to the Royal claims, 
but Lanfranc's successor, the great Anselm, overawed and 
overcame both King and Bishops and forced the King and 
the secular power to cease investing the Clergy by ring 
and crosier, i, e., to cease investing them with the ecclesi- 
astical ofl&ce, and to be satisfied with the clerical acknowl- 
edgment of loyalty and obligation for temporalities, and 
to no further oppose appeal to the Pope. The successor of 
Anselm as Archbishop of Canterbury, William of Corboie, 
held at the same time the office of Papal Legate in Eng- 
land. 

King Henry II succeeded in arresting the monarchic de- 
velopment in the Church in England momentarily at this 
point. By the Constitutions of Clarendon, 1164, it was pro- 
claimed, among other things, that the Bishops should be 
elected by the Clergy subject to the approval of the King; 
that appeal might be taken from the decisions of the Arch- 
bishop to the King, which should be final; and that the 
Clergy must first establish in the secular Courts their 
clerical character before they could claim benefit of clergy, 
i. e., the privilege of being subject only to the jurisdiction 
of Church tribunals. Both the Archbishop of Canter- 
bury and the Pope repudiated these Edicts or Constitu- 
tions, and the murder of the Archbishop, Becket, by four 



148 GOVERNMENT AND LIBERTY 

of the Bang's Knights, demoralized the King's cause and 
gave the victory to the Church and the Papacy. 

The weak reigns of Richard, John, and Henry III fol- 
lowed, during which the Pope, the powerful Innocent III, 
placed his own appointee, Langton, in the Archiepiscopal 
seat of Canterbury, appointed the Bishops at will and even 
disposed of the benefices of the Church in England by grant- 
ing many of them to Italians and others of foreign birth, 
and forced the King to receive his Crown from the hands 
of the Pope as a Papal fief. With this the supremacy of 
the Church under the Papal control reached its highest 
point in England. 

With the close of the century, the thirteenth, the devel- 
opment of the English nation and national spirit had gone 
so far that it was boimd to manifest itself in asserting limi- 
tations upon both the Royal and Papal power. The es- 
tablishment of the English Parliament at the end of the 
century marks the beginning of the end of the Middle 
Ages in England, at least in so far as the supremacy of 
the Church was concerned. 

The fourth point in our definition of the Middle Ages, 
viz.: the people, requires but brief treatment, because there 
was really no such body in the Middle Ages. There was a 
population; there were the subjects of Government; there 
were Vassals and tenants; there were serfs and slaves, but 
not people. This word expresses the conception of a body 
held together by some internal bond, by a spiritual con- 
sensus, a body which has a common consciousness of 
fundamental rights and a common sense of necessary duty, 
and a common intelligence and character-force adequate 
to the attainment of those rights and the fulfilment of that 
duty. In these things it is that the people is distinguished 
from the population, or a part thereof, from the mere sub- 



THE EFFORT OF EUROPE 149 

jects of Government, from the mob, from a band of heelers 
or followers. In another respect, also, of a different char- 
acter, it differs from these things, viz.: in the fact that it 
comprehends all persons within a given territorial unity, 
and not simply a part or a fragment thereof. A real peo- 
ple cannot, in fact, exist under the monarchic state-form 
or under the feudal aristocratic state-form. It can really 
exist only where it holds, in organization, the sovereign 
power, and where all the organs exercising governmental 
power, i. e., power which may be realized by the employ- 
ment of physical force, are subject to its superior regulation 
and control. A people in a true sense is a product of his- 
toric development, a late product, the appearance of which 
marks a high point, if not the highest, in political civiUzation. 
During the Middle Ages the organization of the popula- 
tion in the Christian Church came nearer to being the 
people than in any other character. In every other char- 
acter the population was broken up into fragments, having 
little or no connection and existing under the relation of slave 
or servant to master, or of tenant or Vassal to Landlord, 
or, at the highest, of subject to Government, with so great 
a variety in law and custom that no common opinion was 
possible. In the Church, on tljie other hand, a common re- 
ligious belief and a common morality, together with certain 
common juristic principles derived from the Roman Civil 
law, prevailed and developed slowly, but surely, a consensus 
of opinion which made for the development of a people. 
When the consensus was ripe it seized the sovereignty and 
the population became the people, but this belongs to the 
period of the Revolution, between the Middle Ages and 
which lies the period of the revived Monarchy, the Renais- 
sance, the Reformation, and the Free Cities. At this point 
it is sufficient to say that in the Middle Ages there was no 



ISO GOVERNMENT AND LIBERTY 

people, only a population in a variety of subject relations, 
but preparing under the discipline of Christian morals to 
develop a philosophical consensus, which would lead finally 
to the transformation of the population into the people. 

The final element in our conception of the Middle Ages 
is the method of thought and reasoning, in other words, 
its logic; because the Middle Ages had neither philosophy 
nor science. In the psychic sphere, it had only theology, 
based on revelation, and logic. The course of thought and 
reasoning applied to any and every subject was thus a syl- 
logistic deduction from premises furnished by revelation. 
The revealed premises went unchallenged as divine truth, 
divine principle, and the conclusion was reached by the 
simple process that A is B, C is A, therefore C is B. 

Of course, the question as to the correct interpretation 
of the meaning of the revealed premises could not fail to 
arise, and the one thing that was settled about this in the 
Middle Ages was, that it was not to be made by the indi- 
vidual layman for himself. In some way or other it must 
be done by the Church. But again the question demanded 
further answer. By whom in the Church and in what 
way ? Should it be by each Clergyman, or by each Bishop, 
or by each Archbishop, or by the Pope, or by a Council, 
provincial, national, or ecumenical ? The Middle Age was 
never able to give a consistent answer to this part of the 
question, nor to that part relating to the mode or form in 
which the correct interpretation must be given, in order 
to distinguish it from mere personal opinion and give it 
the stamp of official authenticity. It is not quite fifty 
years ago that the Church finally settled this point. The 
thinking, therefore, of the Middle Ages had two great faults, 
at least. The first was the uncertainty about the correct 
meaning of the premises and the second was the barren- 



THE EFFORT OF EUROPE 151 

ness of result. This element of the Middle Ages was, 
further, the most persistent of them all. It held its sway- 
over the movement of thought to the period of Bacon and 
Descartes and was then supplanted by the inductive 
method, the method of research for the discovery and 
meaning of facts, and of proceeding by comparison and in- 
duction to conclusions. 

From this brief description as well as definition of the 
Middle Ages, it will now be possible to discuss the question 
how the Middle Ages solved, or attempted to solve, the 
great problem of the reconciliation of Government and 
Liberty. As we have seen in our survey of the Feudal 
System, the Emperor and the Kings had no direct relation 
to the individuals of the great subject classes except to 
such persons as dwelt upon the landed estates of the Crown. 
Over these the Government of the Emperor and the respec- 
tive Kings was that rather of master over slaves and serfs 
than of Sovereign over Subject. All other persons of the 
subject classes were the tenants, serfs, or slaves of the great 
Vassals of the Crown, lay and ecclesiastical, and were 
under the immediate unrestricted Government of each of 
these great Landlords on his own estate, while these Land- 
lords were exempt from the control of the Emperor and 
Kings, except as provided in the grant of estates or offices 
by the Crown to them. As we have seen, therefore, the 
political system of the Middle Ages was practically au- 
tocracy by the local Lord of each estate or Manor over the 
tenants, serfs, and slaves Uving upon the same, coupled 
with anarchy in the relations of the Landlords, the fief- 
holders, to the Crown. The relation of Sovereign to Sub- 
ject had given way almost entirely to that of Lord to Vassal, 
master to serf and slave. Governmental power had be- 
come incident to property in land. Public relations had 



152 GOVERNMENT AND LIBERTY 

become subordinated to private. While there was thus a 
sort of Constitution subsisting between the Crown and 
each Vassal of the Emperor or King, reserving to the 
Vassal all powers, prerogatives, and Hberties not surrendered 
to the Crown, there was no provision whatever of Individual 
Liberty for the serf or slave, the great mass of the popula- 
tion. While there was, thus, abundance of Liberty for the 
immediate Vassals of the Crown, and some Liberty for the 
Valvassors, or Vassals of the great Vassals, there was none 
whatever, so far as the secular institutions were concerned, 
for the serfs and slaves, the great mass of the population. 
Moreover, as we have seen, the secular Constitution pro- 
vided no guarantee of the liberties of the Vassals. They 
were referred to their own interpretation and their own de- 
fense of them, each in his own case. This situation led 
indeed to frequent combinations among the Vassals to 
protect each member of the same by the combined power 
of all against the encroachments of the Crown, the most 
notable of which was the league of the Barons at Runny- 
mede, and the extortion by them of Magna Charta from 
King John. If the Barons composing this league had 
remained outside of the Government and had not each 
exercised the powers of Government in his own estate, 
here would have been a constitutional organ of a logically 
consistent and most effective sort for maintaining Indi- 
vidual Liberty against governmental encroachment, but 
neither of these conditions held in regard to this league of 
the English Barons of 12 15 or to any other Baronial com- 
bination against the Government of the Emperor or of the 
Kings. The Baronial league of 12 15 developed, before the 
end of the century, into the House of Lords of the national 
Parliament, which itself developed into the supreme law- 
giving body of the Government. The Baronial leagues 



THE EFFORT OF EUROPE 153 

upon the Continent were generally of short duration and 
created no permanent institution for the defense of Indi- 
vidual Liberty, either for their own members or for the 
lower classes of the population. 

We must, therefore, turn again to the Church to find the 
defense of the Individual Liberty of the great mass of the 
population against the despotism of Government either of 
Emperor, King, or Feudal Lord. The Church, as we have 
seen, had reached the culmination of hierarchic organiza- 
tion under the Papacy of the Bishop of Rome. It paid no 
attention to secular lines. It was now the one universal 
organization of Western Christendom and its membership 
included all persons of whatever sex, class, or age. Had 
the Church held itself free from all participation in, or ex- 
ercise of, the powers of secular Government, i. e., Govern- 
ment by physical force, actual or possible, it would have 
been a consistent and most powerful definer and defender 
of the Liberty of the Individual, but such was not the case. 
We have seen how Bishops and Abbots became the Vassals 
of Emperors and Kings, receiving vast landed estates from 
them and governing, in all respects, the population resi- 
dent upon the same, becoming thus Manorial Lords as 
well as Ministers of religion. The result of aU this was, 
as we know, that the Emperor and the Kings claimed the 
right to confer the ecclesiastical office as well as the prop- 
erties of the Crown attached to it, and actually m.ade, in 
this way, dissolute laymen Bishops and Abbots, and that 
such Bishops and Abbots addressed themselves to the 
exercise of despotic governmental power over the inhabi- 
tants of these estates and then over their Church subjects 
not resident on their estates, rather than to the work of 
protecting the individual against the despotic and arbi- 
trary powers of the secular Government. Gregory VII, 



154 GOVERNMENT AND LIBERTY 

Benedict IX, Innocent III, and Innocent IV, did great 
work for civilization in separating the Church from the 
secular Government and secular society, by their reforms 
concerning the investiture of the Ecclesiastics with their 
ofl&ces and concerning the marriage of Prelates and Priests. 
Nevertheless they could not effect the surrender of the 
estates held by the Bishops and Abbots from the Emperor, 
Kings, and Lay-Lords, and thus the Prelates continued to 
be Governors over such districts in secular as well as eccle- 
siastical matters and felt themselves more interested in 
Government than in Liberty. Some of the Popes were, 
indeed, in favor of surrendering the estates of the Church 
held of the secular powers and reducing the Church to its 
original poverty and to dependence upon the free contri- 
butions of the faithful, but the Bishops and Abbots gen- 
erally would not hear to it. 

It is easy to understand that when the Church lost thus 
in the Middle Ages its fundamental character as an insti- 
tution whose power rested upon conviction, influence, and 
the response of the religious sense and the moral sense, 
and adopted the methods of secular Government, i. e., 
physical force, to realize its purposes, it became even more 
despotic than the secular power itself, because it undertook 
to control by physical force not only the outward act, but 
the internal thought and beHef . Its persecutions for heresy 
were the culmination of despotism in Government and it 
is difficult to see that these persecutions furthered civiliza- 
tion from any point of view. But with all this the Church 
was, during the entire Middle Ages, the refuge of the com- 
mon man against the rapacity of the secular powers. The 
Prelates and also the general Clergy maintained the right 
of asylum in the Churches, the right of intercession with the 
secular powers in behalf of the Liberties of the common 



THE EFFORT OF EUROPE 155 

man, even in behalf of the slave, and also enforced what 
was known as the Truce of God, whereby violence was re- 
strained by common agreement for a large portion of the 
time of each week. They held the torch of learning; they 
represented reason as superior to passion; they represented 
conscience as opposed to barbaric lust; and they were the 
patrons of art. Their law in the secular Government of 
the inhabitants of the Church estates, when rehgious belief 
was not involved, was more humane than the feudal cus- 
tom which elsewhere prevailed. They substituted the 
Roman law system of evidence for the barbarous ordeals oi 
the secular tribunals. Lastly and most important of all, 
they helped mightily in the building of the cities, where, 
ultimately, the common man developed the power of demo- 
cratic organization and opinion. During the centuries 
from the ninth to the thirteenth the oppressed tenants, 
serfs, and slaves of the Manorial estates sought refuge in 
the towns or places where the seats of the Bishops and 
Abbots were located. At first, they came, of course, under 
the Government of the Prelates, not, however, as residents 
upon Church estates, but as subjects of the Church. Their 
position was thus from the first much freer than that 
of the dependants of the Church Manors, and as they 
became associated in trade and industry with each other 
in the towns and were under the jurisdiction of the Roman 
law, a law based upon general principles and administered 
largely by the Clergy, they gradually developed those 
points of agreement in opinion concerning rights and wrongs, 
Government and Liberty, which made of them a real citi- 
zen body and prepared them to take municipal Govern- 
ment into their own hands. But this belongs to the next 
period in the political development of Europe and its treat- 
ment must be deferred to our next chapter. The great 



156 GOVERNMENT AND LIBERTY 

lesson for us in this connection is that when the defender 
of Individual Liberty becomes participant in the legislative 
and executive Government it transfers too largely its in- 
terests and its efforts to Government, to the expansion and 
exaggeration of Government, to remain a real and sufficient 
defender of Liberty. The time has then come for the es- 
tablishment of a new organ of Liberty outside of the politi- 
cal Government, one which stands for the subjects of Gov- 
ernment and which sees its first, if not its only, duty in 
protecting the Liberty of the Individual against the un- 
warranted or unnatural assaults of Government upon it. 



CHAPTER VIII 

THE REVIVAL OF THE MONARCHY 

Perhaps the better title for this chapter would be the 
development of the National Monarchies, because what 
had passed as Monarchy before this period differ^ very 
greatly from the creations of the fifteenth, sixteenth, and 
seventeenth centuries bearing that name. The elements 
and movements contributing to the production of this new 
Monarchy were the Free Cities and their growth from the 
eleventh to the fifteenth centuries, the Renaissance or the 
new Learning, the Reformation, the Standing Army, the 
Royal power of taxation, and the increased diplomatic 
activity of the age. 

Let us examine all of these in some detail. 

First, the Free Cities. 

In the early Middle Ages, the towns were either the Mu- 
nicipahties of the era of the Roman Empire, or they had 
grown up chiefly around the seats of the Bishops. In both 
cases they were governed locally, at least, by the Bishops 
under the general principles of the ecclesiastical and Roman 
Civil law. During the Middle Ages the secular Lords and 
the Kings, who held estates and domain around the towns, 
either encroached upon the Bishop's jurisdiction or kept 
Bailiffs in the towns to administer the Feudal law over such 
of the inhabitants as were not of the Roman or Celto- 
Roman race. This double jurisdiction and variety of law 
administered in the towns created constant turmoil, with 

157 



158 GOVERNMENT AND LIBERTY 

the result that the inhabitants themselves, thrown much 
more closely together than the inhabitants of the country, 
and living thus under much more favorable conditions for 
the development of a consensus of opinion among them- 
selves, began forming associations for the protection of 
their interests against the arbitrary rule of either Barons 
or Bishops. These associations, originally economic in 
their nature, gradually became also political, and either 
bought or wrested by force from the Kings or Barons 
articles of incorporation for the towns, thus restoring them 
to the condition of MunicipaUties under the Roman system. 

Closely connected with this development, and in no small 
degree the source of it, was the rise of the Jurists or lawyer 
class, especially in France. The Pandects of Justinian 
were discovered and made the basis of the Law School of 
Bologna in the first half of the twelfth century, and the 
study of them spread rapidly toward the Northwest and 
became quickly a part of the programme of studies in the 
Universities at Montpellier and Paris. It was the new 
class of Professionals created and developed by these studies, 
the Jurists, who knew how to organize the Municipalities 
on a secular basis, who created, or rather recommended 
the King of France to create, the Judicial ParHaments of 
France, and who became most valuable allies to the Kings 
in creating the new Monarchies. 

The great importance of the Municipalities or Free Cities 
to the development of the new Monarchies consisted in the 
facts that their freedom or independence was freedom from 
the Government of the Baron, or the Bishop, not freedom 
from the Government of the King, and that a strong pop- 
ular power friendly to the King, as its protector against the 
encroachments of Baron and Bishop, was thus created. 
The relation between the King and this part of the popu- 



THE EFFORT OF EUROPE 159 

lation was thus not the relation of Lord to Vassal, and then 
to under- Vassal, but of Ruler to Subject. 

The idea that the individual owed an allegiance and 
obedience to Government not conditioned by any specific 
contract between himself and any superior nor, on the 
other hand, of the nature of slave to master, began to come 
into the consciousness of the urban populations. At first 
this conception was naturally very dim and uncertain, for 
the burgher class, as it originally formed itself in the 
eleventh and twelfth centuries, was composed of the little 
tradesmen, artisans, and a few small agriculturalists, who 
had taken up their residence within the town limits; but 
as the lawyers and physicians and official classes grew and 
were fused with the tradesmen, artisans, and small land- 
owners into the burgher class of the fourteenth and fifteenth 
centuries, the notion of the relation of Subject and Ruler 
grew clearer and clearer, and supplanted more and more, 
as time wore on, the feudal conception of Vassal to Lord. 
This new burgher class, often called the third estate, furn- 
ished the stock and stuff for the development of the new 
Monarchy, not only in a physical and material sense, but 
also in an educational and a theoretical sense, in the neces- 
sary sociological sense for the development of a people out 
of a hodge-podge of conflicting classes. It must not be 
understood that this new burgher society had anything in 
the nature of a national consensus or clearly perceived its 
relation to the King. Generally speaking we might say 
that there were as many burgher societies as Cities, and 
that each City went to the limit of independence not only 
against Baron or Bishop, but also against King. Political 
thought was not yet refined enough to conceive the City 
as a local administrative body under a higher legislative 
power and a broader sovereignty. Such distinctions came 



i6o GOVERNMENT AND LIBERTY 

much later. At the beginning of the fifteenth century 
each Free City regarded itself as practically independent 
of every superior, as practically sovereign, and in some 
cases, as in the Lombardian Cities in the last half of the 
twelfth century, they leagued themselves against the 
Royal or Imperial power, and actually, in the case cited, 
overcame it. But with all this crudeness, confusion, and 
sometimes hostility, the urban mind was beginning to be 
formed and like conditions were forming it practically 
upon the same lines in the different conmiunities, and the 
Kings were becoming more and more conscious that here 
was to be found the physical and intellectual power for 
lifting the throne above Papal, episcopal, and baronial 
defiance and making of it the superior Gover!nment over 
all alike, virtually the state itself. 

This relation of the urban population to the Crown was 
seen most clearly in the building of the Spanish Monarchy 
where the league of the Cities of Castile, the Holy Her- 
mandad, furnished King Ferdinand with the military and 
the financial power for realizing his plans for the creation of 
the national Monarchy of Spain. Such national leagues 
of the Cities were headed straight toward the development 
of a people, a people which would, of course, at first, be 
the people subject, but out of which would develop, when 
the time and the conditions were ripe, the people sovereign. 
And even when these leagues did not exist, like conditions 
and relations produced, in the different Municipalities, 
something like an agreement in opinions and purposes and 
made it easy for the King to become the immediate bond 
of union between them. On the whole the Free Cities 
furnished the popular power for offsetting the decentraliz- 
ing power of the Barons and the Bishops, a power which 
increased, too, continually at the expense of that of the 



THE EFFORT OF EUROPE i6i 

Barons and Bishops, in that the better conditions offered 
the lower classes, the common man, in them drew the ten- 
ants, serfs, and slaves of the Lords into their walls and 
depopulated the Manorial estates. This popular, demo- 
cratic power of the Free Cities found its first national or- 
ganization around the new Monarchies of the fifteenth, 
sixteenth, and seventeenth centuries and was by them 
fused into the new nations of modern times, and it enabled 
these Monarchies to triumph over the Feudal System and 
the Church and to lead the way to the modern conception 
of the state. 

Secondly, the contribution made by what is known in 
history as the Renaissance to the development of the 
Monarchic state was, if more psychical, equally potent. 
By some historians the term Renaissance is made to cover 
the entire movement out of the Middle Ages into the 
modern time. In this would be included the revival of 
ancient learning and culture, the discoveries in chemistry, 
physics, mechanics, cosmology, and astronomy, the Ref- 
ormation, and the new Monarchies of the fifteenth, six- 
teenth, and seventeenth centuries. I think it better in 
some respects to give it a narrower meaning, however 
closely connected all of these parts of the one great de- 
velopment may be, because I am scientifically interested 
in not discrediting the Middle Ages, by representing them 
as the "Dark Ages," to which light came only from the 
Orient and Ancient Greece and Rome. There were ele- 
ments of developing culture in the West which may, in- 
deed, have been helped on by the revived knowledge of 
the Orient and of European antiquity, but which were 
indigenous and which asserted themselves with very little 
encouragement from without. I prefer, therefore, to use 
the term Renaissance as designating the revival of a knowl- 



i62 GOVERNMENT AND LIBERTY 

edge in Europe of the Orient and of European antiquity, 
although I would not confine it to the study of Hebrew, 
Greek, and Latin and the literatures embraced in these 
languages. I would make it include also the knowledge 
of the social and political systems and of the educational 
principles and philosophical and aesthetic spirit which dis- 
tinguished the Ancient World from Mediaeval Europe. 
Only in this way, I conceive, can we give due credit to 
all the forces conspiring to lift Europe out of the Mediaeval 
into the Modern period of its development. 

The Renaissance, in the sense we have given it, began 
with the revival of the study of Latin in Italy in the middle 
of the fourteenth century. Undoubtedly, a number of 
persons were engaged in this work about the same time, 
but the one name which has been celebrated as the orig- 
inator of the movement is Francesco Petrarcha. 

Ancient Latin and ancient Greek were, however, so 
closely connected that the researches in the one language 
naturally ran into those in the other, Petrarch himself 
did not know Greek, but he recognized the importance of 
a knowledge of this more ancient language and literature 
and urged the necessity of reviving the study of them. It 
was Boccaccio, however, who stands to the revival of Greek 
learning as Petrarch to that of Latin, 

The first step was, of course, the collection of Latin and 
Greek manuscripts, A large number of Italian scholars, 
chief among whom were Filefo, Poggio, Guarino, Aurispa, 
addressed themselves to this work, sustained by the men 
of wealth, the Rulers, and even by the Popes. A veritable 
craze for learning spread through all classes, especially the 
upper classes, in Italy and from Italy throughout Christian 
Europe. Reuchlin, Erasmus, Lope de Vega, Calderon, 
Cervantes, Rabelais, Colet, More, Ascham, and Shake- 



THE EFFORT OF EUROPE 163 

speare are names familiar in every modern household, as 
are those of Ariosto, Machiavelli, Guicciardini, and Lo- 
renzo de' Medici. 

Close upon the collection of the classic manuscripts came 
the invention of paper and printing, and Aldo Manuzio 
set up the world-famous Aldine press in Venice. Froben 
founded a similar business in Bale and Etiennes in Paris. 
From these went out, from the end of the fifteenth century- 
onward, the printed books which made the earliest libraries 
of such books in the European world. 

In this study we are not directly concerned with the 
belles-lettres, the rhetoric, the drama, or the art of the 
Renaissance. Our treatment deals chiefly with the revival 
of the knowledge of the social and political systems of 
Greece and Rome and with the spirit engendered by that 
knowledge towards the social andpoHtical institutions of the 
Middle Ages. It is not necessary for us to restate the 
features of those systems and institutions. We know from 
what has, already, in sufficient detail, been presented that 
the social and political systems of ancient Greece and 
Rome were founded by men on the basis of human nature 
and for mundane purposes, while the institutions of the 
Middle Ages were held to have, and beUeved to have, a 
divine source and an extramundane purpose. The sover- 
eignty and authority of the Church, the Papacy, and the 
Holy Roman Empire were held to be from God over men 
and to be exercised for the preparation of mankind for a 
future world. 

Throughout the Middle Ages and especially the later 
period of this era, mankind manifested a continually grow- 
ing restlessness and rebellion against the repression of the 
wants, passions, enjoyments, aspirations, and purposes of 
human and mundane life imposed by the Mediaeval system 



i64 GOVERNMENT AND LIBERTY 

of ideas and institutions. Entirely independent of the re- 
vival of ancient learning, men had begun everywhere to 
exercise their faculties more freely in every direction. We 
have only to remember that such men as Roger Bacon, 
Albertus Magnus, Bonaventura, Thomas Aquinas, Dante, 
and Abelard lived and worked before the Latin manuscripts 
were unearthed to convince ourselves that human reason 
was not extinguished in the twelfth and thirteenth centuries, 
and that it would have found the way to free European 
mankind from the Mediaeval system, in part or in whole, 
after that system should have accompHshed its great dis- 
ciplinary work in taming barbarism and sensuality and in 
fitting man for freer thought and freer life. We must, 
therefore, look upon the revival of classical learning more 
as an occasion than as a fundamental cause of the great 
awakening of the fifteenth and sixteenth centuries. As an 
occasion it had truly a most powerful effect, especially in 
the modification of pohtical, legal, and social ideas and 
ideals. The richness of the city life and of the, at least, 
more democratic institutions of Greece and Rome furnished 
a glowing contrast to the poverty and monotony of rural 
existence in feudal Europe, and the picture of classical 
glory and refinement, of general cultivation and human 
happiness, helped the European mind greatly to divest it- 
self of its thraldom to a system which indeed had had its 
place in human development and had done well its work 
therefor, but which, in the fifteenth century, had accom- 
plished the great purpose of its existence and must yield 
the control of European civilization to a new system of 
ideas and of life. 

During the first decades of the classical revival, the en- 
thusiasm for learning and zest for effort in its acquirement 
kept the movement within religious, moral, and civic 



THE EFFORT OF EUROPE 165 

bounds. No one seemed to foresee in these earlier years 
any danger in the great awakening to the existing institu- 
tions of society and Government. As I have said, even 
the Popes gave encouragement to, and participated in, 
the movement. When, however, the scholars went be- 
yond the study of the grammar and hterature of the Classic 
languages and began to investigate and to teach the social, 
civil, and political life, customs, and institutions of the 
Classic peoples, then the danger point was reached, and 
men began to think of the restoration of the Pantheon in 
religion and the democratic Municipality in Government. 
The force of this impulse came first, as was natural, to 
the Italians. As it advanced and spread it became more 
and more radical and reckless and by the beginning of the 
sixteenth century it had ruined Italy socially, religiously, 
morally, and politically. Paganism, immorality, dissolute- 
ness, lust, obscenity, deceit, and assassination ran riot. 
The loosening of the bonds of Church and Empire had 
opened the way for tyrants like the Visconti, the Sforzas, 
the Foscari, the De' Medici, and the Aragonesi to set them- 
selves up in Milan, in Venice, in Florence, and in Naples. 
Their Government was indeed human, if by that is meant 
that it had nothing of the divine in it. It recognized no 
restraints either of religion, morals, or law, and yet it was 
necessary for curbing the anarchy and decadence to which 
the triumph of the Renaissance over the Mediaeval system 
had at last opened the way. These Governments, however, 
could not solve the problem of tha new Italian unity and 
of the making of the new Italian nation. Pope Alexander 
VI, Borgia, tried it from Rome, and Lorenzo de' Medici 
from Florence, but with no success. Italy became, for 
more than three centuries, a prey for Germans, French, and 
Spaniards to struggle over. In Government, morals, and 



i66 GOVERNMENT AND LIBERTY 

religion the revival of classical learning had had only nega- 
tive results. It demoralized the old system, but from a 
constructive point of view it was a failure. 

Its baleful influences now spread from Italy over Europe 
as had earlier its healthful influences. The whole of Europe 
seemed on the eve of catastrophe, on the eve of dissolution 
itself. But history carries the cure for her diseases. At 
the darkest moment two great movements set in which 
were to save civilization from extinction and set it upon 
a new road of progress. These movements were the Ref- 
ormation and the Counter-Reformation. 

A thorough study of the Reformation must contemplate 
it from at least four points of view, viz.: the discipline of 
the Clergy, the theological doctrine of the Church, the 
Government of the Church, and the philosophy of the 
movement as a forward step in the world's progress. As 
we have seen, the effect of the Feudal System upon the 
Church had been to change the higher Clergy into secular 
Lords, or rather to put secular Lords into the higher 
Church offices, where they still pursued their lives of sport, 
warfare, luxury, and dissoluteness. By the middle of the 
fifteenth century the condition of the Church everjrwhere 
had, in so far as the moral character of the Clergy was con- 
cerned, become deplorable. The reforms of Gregory VII 
had run their course and ceased to have further influence, 
and the Renaissance had, as we have seen, finally contrib- 
uted largely to the demoralization of the whole society. 
The Pope at one end, and the lower Clergy at the other 
end, of the hierarchic organization had been dragged down 
and held down by the power of the Prelates, and morally 
the world seemed on the very verge of dissolution. The 
Popes and the better part of the Clergy, that part which 
was not simply the secular nobility in clerical office, had 



THE EFFORT OF EUROPE 167 

striven again and again to check the downward course and 
to reform the morals of the Ecclesiastics. This was the 
chief meaning of the creation and work of the Monastic 
Orders, the Benedictines in the early centuries, and the 
Franciscans, Dominicans, and the Brethren of St. Jerome 
in the fourteenth century. For a little while each of these 
new creations succeeded in stemming somewhat the de- 
cadence in clerical manners and morals, but soon each in 
turn gave way and was dragged along by the general cur- 
rent. 

Three great Councils of the Church, that at Pisa in 1409, 
that at Constance in 1414, and that at Bale in 143 1, the 
last two usually considered ecumenical, undertook to deal 
with this great question of the morals and discipline of the 
Clergy, but the position of the Council itself in the 
hierarchy of ecclesiastical authority was not then fixed. 
Whether it was superior to the Papal power and had juris- 
diction over the Popes or not was a question still in dispute. 
The great Chancellor de Gerson of the University of Paris, 
and the bold and brilliant Archdeacon of Bayeux, Nicholas 
de Clemenges, defended the proposition that the ecumenical 
Council was the supreme power in the Church, but the 
Popes and the Italian Prelates generally sustained the 
Papal claim to the highest authority. The Councils them- 
selves were thus split upon this fundamental subject, and 
their ability to consider other things, not to speak of their 
ability to accomplish anything, was thus greatly weak- 
ened, practically nullified. 

There is no doubt, however, that the active and continued 
agitation during the fourteenth and fifteenth centuries in 
the bosom of the Church itself resulted in considerable 
improvement of the morals of the Clergy, and it must not 
be forgotten, in this connection, that the blame for the de- 



i68 GOVERNMENT AND LIBERTY 

plorable situation rested more upon the Prelates, who were 
in fact feudal Barons instead of real Bishops and Abbots, 
than upon the Popes and the lower Clergy, and that, as 
is always the case, the badness of the situation was exag- 
gerated by the reformers. The fact is that the time had 
come when the whole system, political and ecclesiastical, 
of the Middle Ages was approaching a crisis in the develop- 
ment of the world's history, and that the men of the age 
were themselves only half conscious, if conscious at all, 
of the forces which were driving them onward. 

The Reformation demanded a complete purification of 
the morals of the Clergy, and a complete separation of the 
functions of Ecclesiastic and Feudal Lord. How this could 
be accomplished without surrendering the lay fiefs held 
by the Ecclesiastics was difficult to see. In fact it was 
about impossible. It was also difficult to see how the morals 
of the Clergy could be purified under the rule of celibacy. 
The Ecclesiastics must be allowed to marry and have 
homes and families in order to prevent them from the 
commission of sexual vice. These two demands of the 
Reformation in regard to the discipline of the Clergy went 
far beyond the plans for the improvement of that dis- 
ciphne entertained by the Church itself, and it soon became 
manifest that they could not be realized in the bosom of the 
Church, but required separation from it. 

The necessity for the Reformation from the point of 
view of theological doctrine came more slowly to conscious- 
ness. The theology of the Church itself was somewhat 
urifixed and unclear until the Council of Trent in the mid- 
dle of the sixteenth century settled its most fundamental 
points. However, there was continual opposition to, and 
dissatisfaction with, the ever-increasing elaboration and 
magnificence of the ritual, and, in less degree perhaps, to 



THE EFFORT OF EUROPE 169 

and with such doctrines as transubstantiation and baptismal 
regeneration, and above all the doctrine of indulgences. 
It was this doctrine, as is well known, which provoked the 
indignation of Luther, and against which his famous theses 
of 1 51 7 were hurled. It was, however, only in the German- 
speaking lands, or at least chiefly there, that the Reforma- 
tion as a change in theological doctrines played a great 
part. Elsewhere it was regarded more from the other 
points of view or, at least, from some of the other points 
of view which I have mentioned. It must not be under- 
stood, however, that in Germany it was regarded from the 
doctrinal point of view only. Quite on the other hand, in 
Germany, more than anywhere else, the discipline of the 
Clergy, Church Government, and the general philosophy 
of the movement entered also into consideration, contro- 
versy, and the ultimate adjustment. 

The matter of doctrine is not, however, of any great im- 
portance to the subject with which we are concerned in 
this work. It is the question of Church Government, the 
question of the relation of the Church to the civil Govern- 
ment, and the question of the general philosophical signifi- 
cance of the movement as modified by the Reformation, 
which constitute our problem. The Reformation demanded 
and effected a very great change in the Government of the 
Church itself, and in the relation of that Government to 
civil Government, both in the countries where it produced 
a complete separation of the religious communities from the 
Roman Catholic organization and in those where the sepa- 
ration was not complete. 

In the first place, the divine origin of the Papal suprem- 
acy and of the temporal power of the Papacy was denied 
and disproved, and the historical steps in these develop- 
ments were laid bare. As usual, men went too far in de- 



170 GOVERNMENT AND LIBERTY 

nouncing the Papacy and its temporal power as frauds. 
While they were, indeed, shown not to be of divine origin 
in the then understood sense, they sprang out of the neces- 
sities of history and civilization, and were in that sense 
providential. The true philosophical way of considering 
those questions would have been to have tested the legiti- 
macy and the value of those institutions from the point of 
view of their service to the civilization and progress of 
mankind and, if it should be shown that they had out- 
lived their usefulness, still to have buried them with decency 
and honor for what they had rendered of worth in the past. 
But the Mediaeval mind, and more especially the Renais- 
sance mind, did not work that way. When an institution 
claiming divine origin was shown to be of human origin, 
it was immediately denounced as a fraud, to be done to 
death and cast unto the dogs. Such exaggeration of view 
seems to be necessary, however, in order to stir men up to 
the revolutionary temper. But it generally leads men too 
far in their deeds and provokes reaction. 

It did so in the case of the Reformation, as is well known. 
What is termed in history the Jesuit Reaction was the 
natural result of the excesses of the Reformation. The 
Reformation virtually reduced the Roman Papacy to a 
supremacy in Italy only. The course of the Reformation 
in the complete sense which, as to Goverrmient, it ran in 
North Germany, Scandinavia, the Netherlands and Eng- 
land was, indeed, halted in Spain, France, Austria, and 
Poland by the Counter-Reformation, brought about by 
the Council of Trent and the Jesuit Order, but not even in 
these countries did the Papacy and the Roman Curia ever 
regain the supremacy over the European Church enjoyed 
by them before the Reformation. The idea that the 
Catholic Church within a given nation or state had a cer- 



THE EFFORT OF EUROPE 171 

tain independent existence and authority over against the 
Pope and the Roman Curia sprang up and made its way 
with ever-increasing clearness and force among all these. 

The results of this idea were manifold. First, it seemed to 
require the organization of national Church Councils along- 
side of the ecumenical Council. Second, it seemed to re- 
quire some limitation upon the powers of the ecumenical 
Council in reviewing the decisions and acts of the national 
Councils. Third, it seemed to require some national veto 
upon the promulgation of Papal edicts and orders within 
the jurisdiction of the several national Church organizations. 
Fourth, it seemed to require some national power for the 
revision of Papal appointments within such jurisdiction. 
The very fact of the existence of such ideas shows that the 
nations were already forming themselves through a fusion 
of the Feudal classes in the different natural territorial 
divisions of Europe, and that a national consciousness of 
rights and wrongs and a national consensus of opinion were 
being developed. 

From the early appearance of such impulses, however, 
to their full effect in the organization, religious and politi- 
cal, of the nations was a long call. The long struggle of 
the classes, developed under the Feudal and Ecclesiastical 
organization of European society, was yet to be passed 
through. The lower classes must find a point of unity 
around which to rally in their effort to free themselves from 
the local tyranny of Baron or Bishop or both. During this 
period, the powers of the newly developing National 
Churches against the former unlimited supremacy of Rome 
must be lodged in some powerful hand in each of these 
growing nations. In the struggle of the Feudal classes, 
this could not be any Congress or States General. It 
could not even be the National Ecclesiastical Council itself. 



172 GOVERNMENT AND LIBERTY 

It must be the ever present, always ready, universally 
commanding Royal hand. The King must approve the 
decrees of the National Church Councils for their validity. 
The King must allow or deny appeals to Rome from the 
decrees and decisions of the Church and Clergy within his 
national jurisdiction. The King must approve or forbid 
the publication of the decrees of the Pope and the Curia 
as authoritative. And the King must ratify or reject the 
nominations made by the Pope or the choice made by the 
Chapters to ecclesiastical office. This was the new rela- 
tion of the Church, or Churches, produced, or at least es- 
tablished fully, by the Reformation in those states in which 
the authority of the Pope, the Roman Curia and the 
ecumenical Council was still acknowledged. This was the 
new situation in Spain, France, Poland, and Austria, and 
after the Peace of WestphaUa in the South German prin- 
cipalities. 

Where the Reformation caused the entire severance of 
the Church communities from the supremacy of the Pope 
and the Curia, the change in the Government of the Church 
was much more radical. This was the case chiefly in 
England, the Scandinavian Kingdoms, the Netherlands, 
the North German principalities, and in some of the Swiss 
Cantons. In the first of these, England, the movement 
proceeded more from governmental considerations, in the 
others more from doctrinal. The English King, Henry 
VIII, at first took decided ground against the Lutheran 
doctrines. In 1521 he caused to be published a book 
written by himself in answer to Luther's treatise The 
Babylonian Captivity. The King's book was entitled The 
Defense oj the Sacraments. It ran through several editions 
and was translated into several Continental languages. 
The Pope was so greatly pleased with the King's loyalty 



THE EFFORT OF EUROPE 173 

that he conferred upon him the title of "Defender of the 
Faith." Very soon, however, poHtical and marital, not to 
say sensual, motives induced the King to enter upon a 
course which was to land him upon the side of the Re- 
formers. He desired to divorce himself from his Queen, 
Catherine of Aragon, and marry one of her pretty ladies 
in waiting, Anne Boleyn. The controversy between the 
King and the Pope, Clement VII, of the powerful house 
of Medici, continued with varying features and fortunes 
through years. At length the Pope made the mistake, 
from the point of view of the interest of the Holy See, of 
appointing Cranmer, Archbishop of Canterbury and Pri- 
mate of England, as his Legate in England. 

Cranmer, as representative of the Pope, immediately 
proceeded to annul the King's marriage with Catherine and 
to confirm his union with Anne Boleyn. The Pope repu- 
diated Cranmer's act and demanded of the Kling that he 
should take back Queen Catherine as his lawful spouse, 
and should cease his attempts to rid himself of her. The 
Parliament stood by the King, and in November of 1534, 
passed the Act of Supremacy, declaring the King to be the 
supreme head of the Church of England, and investing 
him with the power to reform the Church. After this the 
King of England could even more truthfully boast that he 
was the Church, than could Louis XIV that he was the 
state. Henry VIII proceeded to use his powers as head 
of the Church in every direction, to prohibit any exercise 
of Papal power, to control the assembly and the decisions of 
National Church Councils, to appoint the higher Ecclesi- 
astics, and, most significant of all, to confiscate the Church 
properties and with them to create a new House of Lords, 
quite subservient to his will, and inasmuch as the House 
of Lords was at that time virtually the Parliament, the 



174 GOVERNMENT AND LIBERTY 

Parliament became in substance the King's Council of lay 
and Ecclesiastical appointees. 

Nowhere else did secular, political, and selfish reasons 
for the Reformation prevail to the same extent as in Eng- 
land. They were not entirely absent, however, anywhere, 
and the political results were practically the same every- 
where, except perhaps in the relatively unimportant Can- 
tons of Switzerland. In the Scandinavian and German 
States the Princely heads of these States became the heads 
of the Church within these States. The Princes succeeded 
to the Papal supremacy, and the episcopal powers were 
exercised by Consistories or Councils in each diocese, whose 
members were appointed by the Princes respectively. 

The Counter-Reformation and the propaganda of the 
Jesuit Order provoked the conflict of arms known as the 
Thirty Years' War, but the results of the struggle were little 
more than a confirmation of the conditions existing at its 
beginning. A few of the German states were brought back 
under the supremacy of the Pope, and France and Poland 
were purged of Protestantism. Protestantism maintained 
its existence, but Catholicism was stronger in 1650 than in 
1600. This latter statement must not, however, be taken 
as meaning that the Pope and the Roman Curia regained 
the Mediaeval powers which they had exercised everywhere 
in Europe before the outbreak of the Reformation. In- 
stead of the Universal Roman Catholic Church, there ex- 
isted after 1650 the National Catholic Churches of Spain, 
France, Austria, Poland, etc., more subject to the Royal 
supremacy than to the Papal, not, however, so completely 
as in England. They were also further distinguished from 
the condition in England in that the change in the govern- 
mental relations to the Roman See did not lead, as in Eng- 
land, to any reform worth mention in doctrine. 



THE EFFORT OF EUROPE 175 

The Crusades, the development of the Free Cities, the 
Renaissance, and the Reformation had thus demoralized 
and disrupted Mediaeval society, and had overthrown the 
Mediaeval ideas of Church and Government. I will not 
say Church and state, as the usual phrase goes, because men 
had not yet thought out the conception of the state as some- 
thing more ultimate and fundamental than Church or Gov- 
ernment, something which might finally control both Church 
and Government and reconcile them with each other. 

Upon the foundation of this demoralized and disrupted 
society the national Monarchies now arose, as the bearers 
of the new national spirit. First, in Spain, with union of 
the thrones of Castile and Aragon by the marriage of Fer- 
dinand of Aragon with Isabella of Castile in the year 1469. 
They were only Crown Prince and Crown Princess when 
married, and did not unite the two countries under their 
own Royal authority until 1479. They became rulers 
first in Castile in 1474, and began there the governmental 
reforms looking to the centralization of all governmental 
power in the Crown. The instruments made use of by 
these gifted rulers were, as I have pointed out, found ready 
at hand in the demoralized society. First, the Free Cities 
of Castile had already formed a league for the protection 
of their trade and commerce against the robber Barons, 
called the Holy Hermandad. This league had a stand- 
ing professional Army of two thousand or more cavalry- 
men, a well-schooled, capable gensdarmerie. This force 
was intrusted to the commandership of King Ferdinand, 
and a permanent stamp-tax was allowed him for its support. 
This body became the nucleus of a standing professional 
Army, and this Royal impost the basis of an independent 
system of Royal taxation. The King was thus recognized 
by the Free Cities as the protector of the common people 



176 GOVERNMENT AND LIBERTY 

not only against foreign attack, but also against the rapac- 
ity of the Nobles. The new Royalty manifested thus, 
from the outset, its democratic character. Then King Fer- 
dinand secured the grand-mastership of the three orders 
of Castilian Knighthood, St. lago, Calatrava, and Alcan- 
tara. He thus blocked the recruitment of military strength 
by the higher Nobles from the ranks of the Knights, and 
made of the Knights an instrument for strengthening the 
Royal power against the greater nobility. As the Knights 
were the only military organization from which the great 
Nobles had obtained soldiers, they were now shorn of all 
military strength, and the entire military power was con- 
centrated in the King's hands. Finally, through the loyalty 
of the great Cardinal Ximenes and the Grand Inquisitor 
Torquemada, King Ferdinand was able to make the Church 
in Spain substantially the Spanish National Church, and to 
limit the powers of the Papacy and the Roman Curia over 
it to certain definite functions under Royal consent. The 
Inquisition was fashioned into a powerful political instru- 
ment for the purpose of controUing the great Nobles by 
secret summary processes and disposing of them when they 
showed themselves dangerous to the Royal authority. 
The Church became thus an instrument of Government, a 
most powerful instrument, in the hands of the King. Its 
democratic power was added to that of the Free Cities, and 
both were grasped and wielded by the able Monarch to 
subject the Feudal nobility to the arbitrary power of the 
Crown. Thus far King Ferdinand brought the develop- 
ment of the Monarchy. His grandson and successor, 
Charles, known in history as Charles V, the Emperor, was 
barely able, through the powerful services of Cardinal 
Ximenes, who was great in war as well as peace, to hold 
the ground. Philip II, however, Charles's son, built further. 



THE EFFORT OF EUROPE 177 

All students of Spanish history know that there existed 
throughout Spain in the middle of the sixteenth century 
codes of liberties and privileges of all classes in the society 
known as Fueros — we would call them now Bills of Rights 
and Immunities — and that these liberties and privileges 
were interpreted and upheld against the arbitrary acts 
and encroachments of Government by the Judicial tri- 
bunals, which, in each Kingdom or Principality, were under 
the supervision and control of a personage called the Grand 
Justiciar. The Justiciar was chosen originally by the 
Mediaeval Estates General, the office becoming in some 
cases hereditary, following the general principle in this re- 
spect of the Feudal System. Philip II saw in this institu- 
tion of the Justiciar and the tribunals subject to his super- 
vision and control the chief remaining obstacle to the abso- 
lutism of the Crown. He brought his whole power and 
tact against it, not hesitating to employ the secret agency 
of the Inquisition. He finally succeeded in putting the 
Grand Justiciar to death, in making his successors Royal 
appointees subject to dismissal at any time, in bringing the 
entire administration of justice under Royal control, and in 
aboHshing those Fueros that stood in the way of his abso- 
lute power. With this the last obstacle to his absolutism 
was overcome, and at the close of the sixteenth century the 
Spanish Monarchy had reached the point where the King 
was in reality the Sovereign over the whole Spanish peo- 
ple, that is, over the whole population of the Iberian pen- 
insula. The classes of the Mediaeval society were now 
fused into the one subject body of the Hapsburg Monarch, 
who had either destroyed or reduced to his absolute con- 
trol every institution, power, or custom which might exert 
any limitations upon his own will and pleasure. 

We must date the beginning of the restoration of the 



178 GOVERNMENT AND LIBERTY 

Monarchy and of the development of absolute Govern- 
ment in France from the reign of Louis IX, Saint Louis, as 
he was fondly termed by his people, i. e., from the second 
and third quarters of the thirteenth century. Saint Louis 
was, so to speak, the first of the lawyer-Kings of France. 
He sought to substitute the general rule of the Roman 
Law for the varied Feudal customs of the different parts of 
the Kingdom. He absolutely forbade the Mediaeval prac- 
tises of self-help in the settlement of internal difficulties 
of a judicial nature, and substituted therefor the jurisdic- 
tion of the Royal Courts, the so-called Parliaments. By 
such means he curbed the feudal Lords and subjected them 
to the authority of the Crown. He also made use of 
Lawyers instead of feudal Barons and civil officials. Al- 
though of a deeply reHgious nature and also a good Church- 
man, he would not acknowledge the claims of the Church 
to supremacy over the King nor of the Pope to supremacy 
over the Church in France. He appointed the Bishops of 
the Church in France, and he would not allow appeals to 
Rome on any secular matter, and forbade all exactions of 
revenue from the Church in France by the Popes and the 
Roman Curia, except under Royal consent and approval. 

Saint Louis's grandson, Philip IV, le Bel, carried this de- 
velopment further. Philip was also a lawyer-King, more 
pronounced than Saint Louis. He had none of his grand- 
father's religious mysticism, but was logical, cold, and cal- 
culating. With his Roman lawyers he worked out clear 
distinction between the secular and the spiritual powers, 
and confined the Ecclesiastics rigidly to the exercise of the 
latter. He also insisted, with much success, in subjecting 
theFeudalLordsto the jurisdiction of the Royal Law-Courts. 

He expelled the Bishops and other Clergy from seats in the 
Parliament, the Royal Law-Courts, and followed the poHcy 



THE EFFORT OF EUROPE 179 

of his grandfather in appointing only lawyers to civil office. 
He fixed the supreme Law-Court of appeals at Paris, and 
made it the great central organization for the registering 
of the laws and the administration of justice. From his 
reign dates the principle that laws to be valid must be regis- 
tered by the Parliament of Paris. Even the edicts of the 
Crown must be registered before they were law. Conflict 
between the Crown and Parliament over this point was 
avoided by the custom of the Crown to issue no edict not 
beforehand advised and approved by the Crown lawyers. 

The attitude of the King toward the Papacy brought on, 
at the end of the thirteenth and the beginning of the four- 
teenth centuries, the historic struggle with Pope Boniface 
VIII. Philip undertook to levy contributions upon the 
Church property in France, and in the year 1296 Boniface 
forbade the Clergy generally to pay any aid, contribution, 
or impost to the civil power and threatened any Prince 
who should undertake to require the same from the Clergy 
with excommunication. The King took this as aimed spe- 
cially at himself, and answered it with an ordinance for- 
bidding the export of gold, silver, jewels, or anything of 
value from France without the Royal consent. Rejoinder 
and then surrejoinder followed this answer until at last 
the Pope made the Mediaeval assertion that the Pope was 
superior to all Kings, and the King declared that in things 
temporal the King was without any superior. 

This controversy and, finally, conflict led to two world- 
historic results. The first was the assembly in 1302 of the 
Etats-Generaux, the Estates General of France, and the 
second was the capture of the Pope and his confinement 
at Avignon. For the first time in the history of France, 
upon the call of the King, the Nobles, Prelates, and rep- 
resentatives of the Cities met in one place, not in one body, 



i8o GOVERNMENT AND LIBERTY 

but in three bodies, to consider the grievances of their 
King and country against the Pope. Here was the oppor- 
tunity for the organization of a supreme lawmaking body 
like the English Parliament, but no such development fol- 
lowed. Each body acted separately, and while the Nobles 
and the burghers adopted addresses favorable to the King's 
side, the Clergy took a somewhat non-committal position, 
and prayed to be allowed to go to Rome to attend the 
Council summoned by the Pope. The Pope at first replied 
mildly, but, encouraged by the victory of the Flemish 
burghers over the French King in the battle at Courtrai, 
where thousands of the French nobility perished miserably 
in a concealed ditch, and misunderstanding entirely the 
effect of this apparent disaster upon the development of 
the Royal power, he issued in November of 1302 the cele- 
brated pronunciamento Called in history the "Unam 
Sanctam," in which the Mediaeval doctrine of the supremacy 
of the spiritual over the temporal in all things, and the 
immunity of the spiritual against the temporal in every 
respect, was again proclaimed, and then demanded of the 
King, under threat of excommunication, that he change 
his conduct toward the Church and the Pope. 

This Bull created a violent commotion in France, and 
the King's chief lawyer, Nogaret, went to Italy and in 
conspiracy with the Pope's chief Italian enemies, the Co- 
lonnas, made the Pope a prisoner at Anagni, whither the 
Pope had gone in the summer of 1303 to escape the heat of 
Rome. The outrages and hardships heaped upon the old 
man caused his death. His successor, Benedict IX, lived 
but a few months, and the King now carried out his plan 
for transferring the seat of the Papacy from Rome to a 
French city. He secured the election as Pope of Bertrand 
de Goth, Archbishop of Bordeaux, and laid heavy condi- 



THE EFFORT OF EUROPE i8i 

tions upon him, among them was said to have been the 
transfer of the Papal residence to Avignon, the recognition 
of the right of the King to take for five years a tithe of the 
products of the Church property in France, and his con- 
sent to the destruction by the King of the Templar Order 
of Knights. The new Pope, who took the title of Clement 
V, was consecrated at Lyons, and after wandering about 
in France, really as a prisoner of the King, for a number 
of years, fixed his permanent residence at Avignon in the 
year 1309, which city remained the seat of the Papacy until 
1378, and of the French Anti-Popes for forty years longer. 
The Pope and the Church became now an instrument in 
the hands of the French King. 

The King now insisted upon the consent of the Pope to 
the destruction of the Templars, a powerful and rich Order 
of ecclesiastical Knights, so to speak, originating during 
the period of the Crusades, located first in Jerusalem, but 
after the Turkish advance into Palestine and Asia Minor, 
withdrawing to Europe, especially to France, and to Paris, 
where they established the great fortress called the Temple 
directly opposite the palace of the Louvre. The King 
charged them with all sorts of crimes and vices, most of 
which charges were undoubtedly false. They were very 
rich and he wanted to despoil them, and that was enough. 
The Pope yielded, the Order was destroyed, and many of 
its members put to death, and its vast treasure went into 
the King's coffers. 

The King lived but a short while to enjoy his triumph. 
He died sorrowfully in the year 13 14. He had builded, 
however, better than he himself knew. The opposition of 
both Nobles and Clergy to the development of the sover- 
eign nation had been so far overcome by him as to make 
certain that the Middle Age in European civilization had 



i82 GOVERNMENT AND LIBERTY 

passed. Three sons followed him and each other on the 
throne, all ruling but fourteen years and leaving only 
daughters behind, and the question now came forward for 
definite solution whether a woman could occupy the throne 
of France. No woman ever had done so, and so the 
Barons and the lawyers decided that no woman was eligi- 
ble thereto. This threw the inheritance upon Philip of 
Valois, son of a brother of King PhiUp le Bel. 

The fact that the Barons had assumed so large a part 
in deciding this question seemed at first to restore them to 
a more commanding place than they had occupied during 
the reign of Philip le Bel, but the hostility of Edward III, 
King of England, provoked by this decision, who claimed 
through his mother, a daughter of King Philip le Bel, the 
throne of France, plunged France into the hundred years* 
war with England, the first effect of which was, indeed, to 
bring about a long period of demoralization and almost 
anarchy in France, but which contributed in the long run 
to the more complete suppression of feudal and ecclesias- 
tical independence, the more pronounced development of 
the nation, and the more unlimited power of the King. 

Passing over the long period of confusion, we come to 
the closing period of the war and the triumph of France 
through the uprising of the nation under the reign of Charles 
VII, and to the following period of the final suppression 
of the revolting Nobles by Louis XL The continuous con- 
dition of war had produced a large class of professional 
soldiers, and out of these was now to be constituted a 
standing Army subject solely to the King. An assembly 
of the chief men of all classes loyal to the King was held 
at Orleans in the year 1438, at which it was agreed that 
the King should select from this well-trained fighting mate- 
rial a sufficient number of the best men to form the nucleus 



THE EFFORT OF EUROPE 183 

of a standing Army of professional soldiers, and that he 
should have power to levy a tax by his own order suj£- 
cient to maintain them. The King immediately selected 
some ten thousand men from among these trained fighters 
and formed with them fifteen regiments of cavalry as the 
nucleus of the new standing Army. He took care not to 
officer them with members of the high Noble class. The 
King further ordered every fifty householders to furnish 
him one free archer to become a paid soldier whenever called 
for. According to the then existing population of the King- 
dom, this levy with the fiiteen regiments of cavalry would 
give the King a standing Army of from eighty to one hun- 
dred thousand men. The King also proceeded through his 
lawyers to invent a system of taxation for the support of 
this formidable force, a system entirely independent of the 
aids or grants of any man or body of men. Finally, in the 
same momentous year, 1438, the King summoned a Na- 
tional Church Council to meet at Bourges, which Council 
issued the well-known "Pragmatic Sanction" of Bourges, 
according to which the Royal authority over the Church 
in France was declared superior to the Papal, appeals to 
Rome were forbidden, the annates aboHshed or at least 
suspended, and the power of the Pope over ecclesiastical 
appointments placed under strict limitations. Charles 
VII, lazy and incompetent as he was, had thus paved the 
way well for his masterful successor, Louis XL 

From a purely personal point of view Louis XI was prob- 
ably the meanest, most contemptible little sneak that ever 
sat upon a throne, but from a political point of view he 
was, considering the conditions of his age, one of the great- 
est statesmen whom the world has ever produced. He 
never lost out of sight for one moment the great purpose of 
his great policy, viz. : to elevate the mass of the people, to 



i84 GOVERNMENT AND LIBERTY 

suppress the privileges and powers of the Nobles, and to 
protect the National Church against the powers of the Pope 
and the Curia. It cannot be said that his purpose in ele- 
vating the common man was to give him liberty over against 
the throne, but only immunity against the power and priv- 
ileges of the Nobles. He appointed chiefly lawyers and 
burghers to office. He elaborated his father's system of 
Royal taxation. He substituted hired soldiery for the free 
archers and constituted an Army, thus, entirely subject 
to his own will. His tax system brought him in more than 
double the revenue which his father had ever gathered, 
and his Army was twice the size of the force constituted 
by his father. He had plenty of money always coming 
in and, as he was economical to the point of niggardliness, 
he always had money on hand for any enterprise. He was 
liberal to the Church, but he held a strong hand over it. 
We may say, finally, that at the end of his reign his Gov- 
ernment was absolute. The Church had through the de- 
moraUzing influences of the Renaissance and the great 
schism lost its power over King or people. The Etats- 
Generaux had dropped out of existence, and the Judicial 
tribunals, the ParUaments, were in the hands of the King's 
own men. All the Mediaeval means of limiting Govern- 
ment had disappeared and there was nothing left in prin- 
ciple but the King and the nation, and the King was su- 
preme over the nation. 

The EngUsh development proceeded a little differently, 
but came momentarily, at least, to the same result. Dur- 
ing the second quarter of the fifteenth century, the four 
essential limitations upon the Monarchy were the Free 
Cities, the Feudal Barons, the Parliament, and the Church. 

The Free Cities were local self-governments based on a 
broad participation of the citizens in the Government; 



THE EFFORT OF EUROPE 185 

the Barons still wielded the powers of local Government 
in their baronies and kept such large bodies of retainers as 
to be almost termed small standing armies; the Church 
maintained its Mediaeval independence over against the 
Royal Government and its connection with Rome and 
the Papacy, recognizing the supremacy of the Popes and 
the ecumenical Councils; and the Parliament clung to its 
power of legislation, taxation, and to its position as supreme 
Judicial body. 

It was the civil war of some thirty years' duration from 
1455 to 1485 between the houses of Lancaster and York, 
over the succession to the Crown, which gave the Monarchy 
the opportunity to free itself from all these limitations and 
make itself absolute. In this war the Noble houses suffered 
so severely that the Barons were no longer able to main- 
tain their independent local Government over against the 
King, or to keep their great bands of retainers now de- 
clared unlawful by the King, or to resist his will in Parlia- 
ment. This was the key to the whole situation and when 
Henry VII, the Lancastrian claimant, overthrew Richard 
III at Bosworth in August of 1485, the ParUament was 
compelled to ratify his claim to the Crown and settle the 
same, in so far as its power went, in the heirs of his body, 
before his marriage to Elizabeth, heiress of York, gave him 
any claims from that quarter. From the very first, Henry 
VII, founder of the Royal House of Tudor, addressed him- 
self consciously to the problem of making the Kingship 
hereditary in his descendants and absolute in its powers. 
The relation of the King to the ParHament at that stage 
in the development of the poHtical history of England 
gave a powerful personality on the throne ample oppor- 
tunity for subordinating Parliament to the King. In the 
first place the Barons in the House of Lords had been so 



i86 GOVERNMENT AND LIBERTY 

shorn of their independence in the civil war, the War of 
the Roses, that they did not dare to oppose the will of the 
King. The King enforced rigidly what was called the 
Statute of Liveries, Edward IV's order against the keeping 
of bodies of retainers, little standing armies, against the 
Barons. He caused their Feudal strongholds to be demol- 
ished, and he himself possessed the only train of artillery 
in the Kingdom, by means of which he was more than a 
match for all the feudal military which the united Barony 
could bring against him. In the second place, the King 
was in position to control the membership of the House of 
Commons by reorganizing the governments of the Cities 
through royal charters of municipal Government, recently 
invented by the Crown lawyers. These charters vested 
municipal Government in the hands of a few persons se- 
lected originally by the King and exercising afterward the 
powers of a close corporation. The members sent by these 
Municipalities, upon the Royal call, to the House of Com- 
mons were, naturally, supporters of the King, as much so 
as the Barons summoned personally by writs issued by the 
King. Moreover, the method of procedure in legislation 
furnished the King with further means of control. For 
example, the Parliament could assemble only upon the 
King's call, and he could prorogue and dissolve it. Then, 
when assembled, the theory of its action was that the 
Commons petitioned the King and that the King legislated 
with the advice of the Lords. It was not even settled 
that the Commons had the exclusive right of petition for 
the enactment of law, or that the King could not ordain 
law without petition from any source, or that the King 
could not dispense with the execution of a law temporarily 
or permanently. All these loopholes were made use of 
by Henry VII to rid himself of the limitations of Parlia- 



THE EFFORT OF EUROPE 187 

mentary power over the Royal will, while as to its power 
over taxation, the King undertook to levy tribute in ways 
not subject to ParHamentary control, by benevolences, 
forced loans, customs, etc. In fact, Henry VII ruled with- 
out summoning any Parliament for mpst of the last decade 
of his reign, and left a treasure amounting to some ten 
milHons of dollars to his successor. 

Henry VIII succeeded to the throne without question, 
on the principle of hereditary right, and in the beginning 
of his reign gave great promise of ruling with benevolence 
and liberaUty. Under the influence of his great Minister, 
Cardinal Wolsey, however, he was shy of ParHamentary 
participation in his Government, and omitted to call Parlia- 
ment whenever he could possibly manage to get on with- 
out it. He succeeded in emancipating himself from every 
limitation upon his absolutism except that imposed by the 
Church. During the first years of his reign, he manifested 
no purpose of freeing himself from this. As we have seen, 
he entered into a polemical struggle with Luther as defender 
of the Roman Catholic faith and received this title from 
Pope Leo X. It was not until he desired to rid himself 
of his Queen, Catherine of Aragon, who was homely, sickly, 
and some five years his senior, that he entered upon that 
course of hostility to the Pope which brought about finally 
— I will not say the English Reformation, but the Act of 
Royal Supremacy, the nationalizing of the Roman Catholic 
Church in England under the papacy of the King. 

Nor will I undertake to say whether personal or political 
considerations weighed heavier with Henry in carrying out 
his purpose. I think the King was really troubled both 
by the lack of a male heir and by the anti-Spanish poHcy 
of Wolsey. 

Wolsey's idea was to checkmate the power of the King's 



i88 GOVERNMENT AND LIBERTY 

nephew, the Emperor Charles V, by bringing about the 
marriage of Henry with a French princess. It is even sus- 
pected that Wolsey had some idea of becoming Pope him- 
self through the success of such a pohcy. At any rate, he 
favored the divorce so long as he thought that the French 
marriage would follow it, but when the King took things 
into his own hands and announced his purpose of taking 
the pretty Anne Boleyn for his Queen, Wolsey showed 
signs of opposition, and was immediately banished from 
his high place. Thomas Cromwell, one of Wolsey's subor- 
dinates in office, was made his successor, and became 
Henry's successful agent for carrying the Tudor absolutism 
to its highest point of consummation. He was a man of 
low birth, who found his way early into the service of the 
Marchioness of Dorset, and then went to Italy and joined 
one of those bands of ruffians known at that time in Italy 
as " Compagnie di Ventura." He was a man of remarkable 
inteUigence and will-power, and he learned readily in Italy 
the pohtics of Machiavelli and the Medici. The Prince 
of Machiavelli was his political bible. He was the man who 
first suggested to Henry to solve the divorce question by 
proclaiming the independence of the Church in England 
against the Pope and the Curia, and assuming the head- 
ship of it himself. It is recorded by the historians that 
Henry shrank, at first, from taking so radical a step, but 
when the thought became familiar to him it lost its terrors 
and was finally embraced. 

How to bring this vast change about was now the ques- 
tion. Cromwell, unlike Wolsey or Henry himself, did not 
fear the assembly of Parliament. He understood how to 
pack the Parliament with his own adherents by the power 
of the Crown in the issue of the writs of summons and he 
knew how to manage its proceedings when assembled. It 



THE EFFORT OF EUROPE 189 

was no difficult matter for him to secure from Parliament 
the Act of Supremacy of the year 1534. He first bullied 
the Clergy by declaring that they and the whole nation 
had made themselves subject to the penalties of the Statute 
of Praemunire for recognizing the authority of Wolsey as 
Legate of the Pope. Under the terror of his threats of 
punishment for the commission of this trumped-up crime, 
he forced the Clergy to pay a fine amounting to a million 
pounds sterling of the present coinage, and to give a silent 
assent to the claim of the King to being the "Protector 
and only supreme head of the Church and Clergy of Eng- 
land." The King then expelled Queen Catherine from the 
palace, and Cromwell forced the Clergy in Convocation 
to propose to ParHament the withdrawal of the first-fruits 
of the bishoprics in England from payment to the Pope, 
and in case the Pope should refuse to recognize the Bishops 
who failed to pay them, to withdraw the obedience of the 
King and people of England from the Roman See. The 
Parliament passed the Act to this effect, to be executed 
at the discretion of the King. Pope Clement, however, 
stood firm, rebuked the King for his adultery with Anne 
Boleyn, and ordered him to restore the lawful Queen to 
her place. Disregarding the command of the Pope, Henry 
married Anne Boleyn. Cranmer, the new Archbishop of 
Canterbury, declared the former marriage of the King in- 
valid, and a few days later crowned Anne as Queen, and 
Parliament declared the King to be the Supreme Head of 
the Church in England, and placed in his hands the un- 
limited control in its Government. The last limitation 
upon the Royal power and authority had now fallen, and 
the absolute Monarchy in England was now an accom- 
plished fact. 

The development of the Monarchy proceeded much less 



iQo GOVERNMENT AND LIBERTY 

rapidly in Germany and Italy and took also quite a differ- 
ent turn because of the restraining influences both of the 
Empire and the Papacy. After the failure of the three 
Houses of Franconia, Saxony, and Hohenstaufen to make 
the Empire an hereditary Monarchy, the German King 
was chosen by the Feudal Princes and became Emperor 
by Papal coronation in Rome. Then a certain ring of the 
greater Princes assumed to nominate the candidate for the 
German Kingship to the whole body of the Princes. Fi- 
nally this nomination became the election and the approval 
of the larger body fell into desuetude. In 1338 the Elec- 
tors declared that the person chosen by them was Emperor, 
as well as King, without the Papal coronation. In 1356, 
by a resolution known in history as the Golden Bull, they 
made the body of Electors to consist of the Archbishops 
of Mayence, Treves, and Cologne, the Count Palatine of 
the Rhine, the King of Bohemia, the Duke of Saxony, and 
the Margrave of Brandenburg. With these developments 
it became utterly impossible for the Empire to grow into 
a national absolute Monarchy, or even for the German 
Kingship to do so. The Revival of Learning and the Ref- 
ormation, by weakening the influence of the Church and 
of religion and dividing the Empire politically into a 
Protestant body and a Catholic body, made the develop- 
ment of the Empire and even of the German Kingdom into 
a confederacy of states unavoidable. This result was 
consummated by the Thirty Years' War and the West- 
phaUan compact of 1648. If after this there was to be 
any revival of Monarchy in Germany and Italy, it would 
be neither Imperial nor national but local. 

The state wliich took the lead and set the example in 
this was Prussia, under the capable and enlightened rule 
of the House of Hohenzollern. This great House of Swabian 



THE EFFORT OF EUROPE 191 

origin won first the Burgraviate of Nuremberg, and from 
this foothold secured the Margraviate of Brandenburg, and 
from this latter foothold in North Germany secured the 
Grand-mastership of the Teutonic Order, which governed 
East Prussia under the overlordship of the Polish King, 
The Margrave of Brandenburg, one of the Electoral Princes, 
was made by the Reformation head of the Church in his 
domains and real defender of Protestantism. By the 
Westphalian pact his state became a real sovereign body 
in confederation with the other states of the Holy Roman 
Empire of the German Nation. By force of arms he drove 
the Swedes, who during the Thirty Years' War had occupied 
Pomerania and other parts of North Germany, back into 
their peninsula and freed himself from the overlordship 
of the Polish King. East Prussia was thus the first among 
the territories forming the later Kingdom to become an 
entirely independent state. For all the other parts of his 
dominions the Margrave of Brandenburg was still a mem- 
ber of the Holy Roman Empire, presided over by the Arch- 
duke of Austria. It was quite natural, therefore, that in 
assuming the Kingship, in 1701, the Margrave gave his 
Kingdom the name of Prussia instead of Brandenburg. 
King Frederick I prepared well the way for his successor, 
Frederick William I, and the latter for Frederick II, the 
Great, under whom the Prussian Monarchy reached its 
full absolutism. 

As I have already described the process in attaining this 
result in the cases of the Monarchies of Spain, France, and 
England, I will only dwell upon those points in which 
Prussia offers some peculiarity. As the Teutonic Order was 
a Military Order, the Government of Prussia in the narrow 
sense, that is. East Prussia, was from the first of the nature 
of the commandership in chief of the Grand Master. That 



192 GOVERNMENT AND LIBERTY 

the methods and means employed in East Prussia should 
be extended gradually to the other parts of the complex 
forming the Prussian state in the large sense was more than 
natural. It was necessary. Prussia was thus a state in 
which the natural order of things was the supremacy of 
the military organization over the civil, and this meant 
the absolute Monarchy of the commander-in-chief. The 
Hohenzollerns solved the problem, however, of subordinat- 
ing the Feudal Lords to the Crown in quite a different way 
from that followed by the Spanish Hapsburgers, the Valois- 
Bourbons, and the Tudor-Stuarts. They did not destroy 
their nobiHty in order to found their absolutism on a 
purely bourgeois basis. They were wise enough and clever 
enough to see that this meant, in very large degree, the de- 
struction of intelhgence by brute force. They did far 
better. They officered their standing Army with their 
nobility, bringing them thus under the military absolutism 
of the King and, through the strenuous life thus imposed 
upon them, restraining them from idleness and dissolute- 
ness, the bane of the aristocracy. So effectual was the 
Hohenzollern system that the King did not find it neces- 
sary to bring the people, through compulsion, under his 
supremacy as head of the Church, and Prussia furnished 
us the unique example of the absolute Monarchy with free- 
dom of rehgion. This was the pecuKar trait of the Mon- 
archy of Frederick the Great. Prussia became thus the 
real representative of the Protestant principle in religion 
and of the intellectual Monarchy in politics. No other 
state of the Holy Roman Empire was able to compete 
with Prussia in these respects. In North Germany there 
was only Saxony which might have done so, but the recon- 
version of its Princely House to Roman Catholicism created 
a hostility between Prince and people which rendered the 



THE EFFORT OF EUROPE 193 

development of the Monarchy, in the Prussian sense and 
strength, impossible. 

The states of South Germany still remained after the 
Peace of WestphaUa under Papal influence and control, and 
no South German Prince was able to reaUze the Monarchic 
system according to the Prussian model. Austria was under 
the same Hmitations. Joseph II tried in vain to follow 
the example of Frederick the Great, but, both he and his 
people being Roman Catholics, he could not only not claim 
the headship of the Church, but must himself recognize 
the headship of the Pope. The ethnical variety, also, of 
his subjects made it next to impossible to weld them into 
a real nation. And so the efforts of Maria Theresa and of 
Joseph II were only partially successful, and Austria never 
attained the real absolute system which would have fused 
the different ethnical elements into a harmonious whole 
and have produced a consensus of national opinion, upon 
which a real popular political system can be finally estab- 
lished. 

Italy was even less fortunate. The bonds of the Em- 
pire having been practically entirely loosed, Italy feU into 
five principal states: Milan, Venice, Florence, Rome, and 
Naples. In these, economic and social differences produced 
somewhat different results. In Milan the aristocratic fam- 
ily of Visconti succeeded in winning the autocratic power 
in that and the surrounding Cities and in forming the 
Duchy of Milan, with which he was, at the close of the 
fourteenth century, formally invested by the Emperor 
Wenzel. This investiture was more for the purpose of 
creating the show of legitimacy and for securing the devo- 
lution of power by hereditary right than for conferring 
any real power. The founder of the House of Visconti, 
Giovan Galeazzo, owed his power to his own cleverness in 



194 GOVERNMENT AND LIBERTY 

political manipulation and to the success in arms of the 
hired soldiery which his own private wealth enabled him 
to keep in his employ. He aspired to unite the whole of 
Italy under his absolute rule, but Venice checked him on 
the East and Florence on the South. He succeeded, how- 
ever, in transmitting his power to his son Filippo Maria, 
and this latter also succeeded in transmitting it to the 
husband of his only child, Francesco Sforza, his chief 
Capitano, who made the Duchy a military state of the 
most tyrannic type, an absolute Monarchy based entirely 
upon physical force and terrorism. 

Venice, on the other hand, furnishes the type of a very 
different development. On account of its insular position 
it escaped German conquest and the Feudal System follow- 
ing it; and on account of its maritime position, it became 
a RepubUc of merchants engaged chiefly in foreign trade. 
An executive chosen for Hfe, the Doge, was one of its earli- 
est institutions, and the inevitable result of the pursuit of 
foreign commerce was the development of an aristocracy 
of wealth, which, because among other things of the na- 
ture of the poHcies to be dealt with and the constant 
absence of a large part of the middle class on the maritime 
voyages, would wield the powers of Government as their 
own exclusive right. The plutocratic Council, composed 
of members holding by inheritance, and its executive com- 
mittee, and the Doge chosen by the Council for life, con- 
stituted the Government of Venice. It was a wonderfully 
intelligent and capable Government, and it maintained 
against all possible attempts of Cassaristic democracy an 
aristocratic RepubHc of a very successful and prosperous 
kind. The decay of Venice is not to be ascribed to the 
nature of its Government, but rather to the fact that 
the discovery of America and of the way to India around 



THE EFFORT OF EUROPE 195 

the Cape of Good Hope and the closing of the Levant by 
the Turks ruined its commercial supremacy. The extension 
of the Government of the Venetian Republic over the East- 
ern Valley of the Po was also a cause of weakness. It in- 
troduced a different social element and new problems for 
an island commercial state. With the Dogeship of Fran- 
cesco Foscari it attained the summit of its greatness and 
declined from that moment until it became a province of 
the Hapsburg Monarchy. 

It is the development of the Florentine Republic into the 
Dukedom of Tuscany which excites greatest interest in 
the student of political science. Florence emerged from the 
Imperial control as a broadly aristocratic Republic under 
della Bella's Constitution established in the last decade of 
the thirteenth century. Having become practically an 
independent state, the necessities of such a Government 
made for concentration of power, especially in time of war 
or civil conflict; and a certain part of the aristocracy, the 
more capable personalities, very naturally came to hold 
the pubHc powers. This part or circle was organized about 
the noble family of the Albizzi. Under their lead the aris- 
tocratic party expanded the City Republic into the Republic 
of Tuscany and opened the way for it to the sea at Livorno, 
Prosperity and the prospect of continuing prosperity were 
most satisfactory and promising, but, as usual, there was 
another aristocratic family in Florence, which was ainbi- 
tious to displace the Albizzi in the control of affairs, the 
Medici, the great bankers of the City. Under the pretext 
of elevating the lower classes to participation in the Govern- 
ment, and under the appearance of declining or of not 
seeking ofhce for themselves, the first four heads of the 
Medici, Salvestro, Vieri, Giovanni, and Cosimo, labored 
incessantly for fifty years, 1380-1430, to gain wealth and 



196 GOVERNMENT AND LIBERTY 

organize a party, the democratic party, with themselves 
as its permanent head: as we would now say, as its boss. 
They succeeded in bringing most of the tradesmen and 
artisans of the city under some sort of financial obligation 
to themselves through the transactions of their great bank, 
and down to the era of Lorenzo they hved simply them- 
selves, gave largely and cast their bread freely upon the 
waters, awaiting patiently the day of its return with interest 
compounded many times over. They preferred the per- 
manent headship of the party which elected the Magis- 
trates to the ofiices themselves with their short terms and 
their responsibilities. They became thus the real perma- 
nent rulers of the RepubUc without incurring the burdens 
and the uncertainties of governmental office, and were 
able always to find a scapegoat for every failure, mistake, 
or misfortune. Moreover, to have all of the offices at their 
disposal was a far more important thing for their purpose 
than to occupy a single one, however powerful. 

That purpose was to use the Government for their own 
private advancement, and finally to change the Repubhc 
into the hereditary Principality of the Medici. The as- 
tuteness with which they worked all the means of corrup- 
tion within their hands under the form always of deference 
to the people — the poor, dear, deluded people — was posi- 
tively infernal, and their success was absolutely diabolical. 
The methods which they followed in changing the most 
jealous Republic which the world has ever produced into 
the Medician Principality, ruled absolutely by Lorenzo 
the Magnificent, gave Machiavelli the material for his 
noted, though very variously understood, and very vari- 
ously appreciated, work, The Prince, and they leave nothing 
to be added in the science of deception, trickery, flattery, 
and manipulation of all weaknesses and corruption. It is 



THE EFFORT OF EUROPE 197 

the greatest example in history of the circumvention of 
physical force by unscrupulous shrewdness. 

The failure of right heirs in the Angevan line of Kings 
in Naples made that Kingdom the prey of war during the 
first half of the fifteenth century, between Rene of Anjou 
and Alphonso of Aragon. Alphonso with his Spanish sol- 
diers won the day and estabUshed the military Monarchy 
of the foreigner in Naples. The King, it must be said, 
ruled with benevolence, and was also a great patron of 
letters and art. He was, however, an absolute Monarch 
of the sixteenth-century type. 

Finally, this development in the other Italian states 
made it necessary for the Pope to consoHdate the States 
of the Church and organize them in Monarchic unity so 
as to prevent the head of the Church from becoming sub- 
ject to a despotic secular Government. This policy, be- 
ginning with Pope Nicholas V, who about the year 1450 
re-established the Papacy in Rome, after the seat of it 
had been for more than a hundred years in Avignon and 
Florence, was brought to its culmination by Alexander VI, 
Borgia, who was thought to be planning to make his son 
Caesar absolute Monarch over all Central Italy when 
death called him from earthly employment in the year 
1503. The despotism of the Papacy in the States of the 
Church was theocratic rather than military, and while it 
was naturally more benevolent, it was also even more 
absolute. The Church was inclined to limit secular Gov- 
ernment outside of the States of the Church, but inside of 
them its limitations could be only self-limitations — in other 
words, benevolent despotism. 

The revival of the Monarchy in Sweden followed swiftly 
upon the withdrawal of Sweden from its Mediaeval union 
with Norway and Denmark, under the leadership of the 



198 GOVERNMENT AND LIBERTY 

capable young Nobleman, Gustavus Vasa, in the first 
quarter of the sixteenth century. By the help of the 
citizens of the towns and the peasantry of the country, he 
recruited a strong standing Army with which he defended 
the national existence of Sweden against the Norway- 
Danish supremacy and held his own Nobles in subjection 
to the Crown; and by the defense of Protestantism and the 
confiscation of the property of the Roman Catholic Church 
he made himself head of the Swedish Church and enriched 
the Royal treasury. In 1554 the Swedish National Assem- 
bly established the right of his family to the throne and his 
two great descendants, Charles IX and Gustavus Adolphus, 
carried the restored national Monarchy to the highest point 
of its absoluteness. 

In the Kingdom of Denmark-Norway this development 
had accomplished itself even earher. In fact it was this 
which caused the withdrawal of Sweden from the Scan- 
dinavian union. Christian II, King of the three divisions 
of the Union, had, through similar means to those later 
employed by Gustavus Vasa in Sweden, developed the ab- 
solutism of his Monarchy to such a degree as, in the 
feeling of the Swedes, to have violated the pledges of the 
Articles of Union of 1397. This feeling it was which caused 
the withdrawal of Sweden from the Union in 1521-23. 
After this Norway remained in union with Denmark until 
the close of the French Revolution, and, in conjunction with 
it, was subject to the absolute Monarchy of the Danish 
House legitimatized by the Lutheran Church system. 

The Middle Ages may be said to have closed politically in 
Russia during the first quarter of the seventeenth century, 
when the Feudal Lords elected Michael Romanoff King, 
or Czar, and made the Crown hereditary in his family. 
There was Httle city life comparatively in Russia at this 



THE EFFORT OF EUROPE 199 

period, and consequently no sufficient burgher class for the 
Monarch to rely upon for defense against the decentralizing 
power and disposition of the Nobles; and the peasantry 
were too deeply sunken in ignorance and apathy, and too 
absolutely absorbed in lo.cal existence, to be taken into ac- 
count in the formation of any Royal internal policy. The 
King, or Czar, was thrown upon the Nobles and such for- 
eign soldiery as he could hire, and he adopted something 
like the later Prussian practise of making the Nobles 
military officials, placing them thus imder the absolute 
power of the Czar as Commander-in-Chief and securing 
their services for the Monarchy. During the rule of 
Michael, his own father was recognized as the Primate of 
the Russian Church, and so conducted the ecclesiastical 
affairs that they proved little, if any, limitations upon the 
absoluteness of the Monarch. When this family relation- 
ship between the Czar and the Primate passed away, as it 
did very soon, the Czar found it necessary to get a firmer 
grasp upon the Church himself, and Peter the Great in 
the early part of the eighteenth century abolished the sep- 
arate Church primacy and made himself head of the Church 
in Russia after the model of Henry VIII in England. He 
it was who put the finish upon the Russian system and 
made it a military Monarchy backed by the ecclesiastical 
power — in other words, a Jure-Divino despotism. 

The revival of the Monarchy during the fifteenth, six- 
teenth, and seventeenth centuries had unquestionably many 
beneficial results to general civilization. It restrained, in 
considerable degree at least, the privileged classes from 
oppressing the common subjects. It improved the con- 
dition of the common man. It developed the feeling and 
the idea of national unity and of the nation. It substituted 
one law for a variety of Feudal customs. It introduced the 



200 GOVERNMENT AND LIBERTY 

distinction between private property and public office. But 
from the point of view of our problem, the reconciliation of 
Government with Liberty, it did nothing, at least nothing 
directly. It sacrificed Liberty completely to Government 
in that it made Government sovereign. The great Mediasval 
institution which had been the chief defense of the Individ- 
ual against the arbitrariness of Government had itself be- 
come subordinated to the power and control of the Monarch, 
in greater or less degree, everywhere; and the Mediaeval 
Legislatures and Courts had ceased to be called together or 
had become Royal institutions entirely under the King's 
control. It was not possible, therefore, that this should 
be the final solution of the great problem, the last word in 
the development of constitutional law and political science. 
It simply brought about that national unity and national 
consensus on the part of the people at large necessary to 
another vigorous and more conscious effort for under- 
standing, and for bringing into their proper relations, the 
three great concepts of political science, the three great 
forces of political and general civilization, viz. : Sovereignty, 
Government, and Liberty. 



CHAPTER IX 

THE REVOLUTIONS 

However helpful to the cause of absolutism in Govern- 
ment the early consequences of the Reformation were, 
still the fundamental principles of it, as of the Renaissance, 
or New Learning, were the direct contradiction of both 
the principle and practise of the absolute Monarchies. 
The freedom of individual thought and inquiry was the 
basis of both these movements, and while it addressed it- 
self to the transformation of letters, art, science, and phi- 
losophy in the one case, it sought the like transformation 
of the reUgious conscience and the ecclesiastical system 
in the other. Such a movement could not fail to extend 
finally to the political system and seek its transformation 
also. 

Where the spirit of the Renaissance attacked the Mon- 
archy, the exaggeration of Individual Liberty fostered by 
it threatened to plunge the state into anarchy. On the 
other hand, where the real spirit of the Reformation at- 
tacked it, the discipHne of the religious life and the self- 
culture produced by it led the whole course of the revolu- 
tion within safe lines. The contrast offered by the English 
and German revolutionary movement to that of France 
and Italy is to be explained chiefly in this way. 

The Revolution accomplished itself in England a full 
century before it did in France. We may place the begin- 
ning of it as far back as 1620, when King James I entered 
upon the poHcy of coimecting Spain, the stanch supporter 



202 GOVERNMENT AND LIBERTY 

of the Roman Catholic Church, with England both diplo- 
matically and by the marriage of Crown Prince Charles 
with the Spanish Infanta. King James seems to have 
fallen mider the influence of the Spanish Ambassador, 
Gondomar, who made him understand that the best way 
to secure the permanence of the absolute Monarchic system 
was by placing it on the Jure-Divino basis, which Orthodox 
Cathohcism alone could supply. Already fifteen years 
before this the Parliament, which the King had been forced 
to assemble to help him out of the financial straits caused 
by the war debt created by his predecessors and by his own 
excessive extravagance, had disputed the King's right to 
levy and collect duties on imports and exports, although 
the Exchequer Chamber of the Royal Courts had decided 
this question flatly in favor of the King's prerogative, 
and also the King's right to absolute power over the 
Church. It was the attitude of the Parliament upon the 
latter point which caused the King to dissolve it in 1610 
and to hold out four years longer without summoning an- 
other. The Parhament of 1614 was, however, even more 
determined than its immediate predecessor to put an end 
to absolutism in taxation and Church Government. It 
was in this Parliament that Eliot, Pym, and Wentworth 
first appeared on the stage of the constitutional struggle. 
The King was almost terror-stricken at the tone which 
the Commons assumed. He quickly dissolved this Parlia- 
ment, sending some of the leaders of the Commons to the 
Tower, and ruled for seven years more without a Parlia- 
ment. During this period the King quarrelled with the 
Supreme Judges for attempting to hold the ecclesiastical 
Courts within legal limits, and expelled the Chief Justice, 
Sir Edward Coke, from his high office, because he refused 
to recognize the claim of the King to be consulted in regard 



THE EFFORT OF EUROPE 203 

to decisions involving the Royal prerogative before they 
should be rendered. The Courts as well as the Parliament 
now began to be inspired with hostile sentiments toward 
the King. But more dangerous to the throne than all 
these things was the immorality of the Sovereign and his 
Court. The King was himself a drunkard and a Hbertine, 
and the orgies of Whitehall became the sport of the public 
and of the stage. He was deeply in love with a handsome 
young adventurer, George Villiers, whom he was con- 
stantly embracing and covering with kisses in the most 
open and shameless manner and whom he made Duke of 
Buckingham and chief Minister of the Crown. Through 
his disgusting conduct all reverence for the throne was 
destroyed and universal popular contempt took its place. 
Such was the temper of the nation when the King entered 
upon his Spanish policy under the direction of Buckingham 
and summoned the Parliament of 1621. 

This ParUament demanded war against Spain and a 
Protestant wife for Prince Charles. The King angrily re- 
fused the demand, forbade the discussion of the foreign 
policy of the Kingdom by Parliament, and threatened the 
leaders with imprisonment. The Commons adopted a 
strong protest against being denied the right of discussing 
any question involving the welfare of the nation and re- 
corded the same in its minutes. The King sent for the 
Journal of the House and tore the resolution out of it 
with his own hand, and then dissolved the Parliament. 

The Prince, accompanied by Buckingham, went to 
Madrid to claim the Infanta and take her back to Eng- 
land, but the Spanish King procrastinated and finally the 
Minister, Olivarez, told the Prince that Spain must never 
assume a hostile attitude to the policy of the Roman- 
German Emperor — in other words, that Spain must always 



204 GOVERNMENT AND LIBERTY 

uphold the orthodox Roman Church against the advance 
of Protestantism. When the knowledge of this attitude 
of the Spanish Government was spread through England, 
the nation rose almost as one man in its demand for war 
against Spain. The King felt obHged to call the Parlia- 
ment together again, and, contrary to his ideas of the abso- 
luteness of the Royal prerogative in the management of 
foreign affairs, to lay before it the Spanish situation. 
Both Prince Charles and Buckingham joined hands with 
the Parliament for Protestant alliances on the Continent 
and war against Spain. The demoralized KJng gave way, 
sickened and died, and Charles I ascended the throne with 
popular acclaim and under popular expectation that he 
would rule as a Protestant Sovereign. But neither Parlia- 
ment nor the nation had rightly divined Charles's ideas 
and plans. It is quite true that he was hostile to Roman 
CathoHcism and the Roman Papacy, but he was equally 
hostile to the Puritans and the genuine philosophy of the 
Reformation. He stood for a National Church, including 
by law every subject of the state, of which he himself 
should be the head and Pope. He placed Archbishop Laud 
in the position of Primate, who organized the clerical party 
for propagating the doctrine of the Jure-Divino Kingship. 
When the Parliament became conscious of these tendencies, 
it put Montagu in the Tower, denied to the King the usual 
grant of the customs during life, and refused him a subsidy. 
The King delivered Montagu from imprisonment, made 
him Royal Chaplain, and levied and collected the customs 
by Royal order. 

At this moment appeared John Eliot, whose clear thought 
had fixed upon the responsibihty of the Ministers of the 
Crown to Parliament as the central point of the constitu- 
tional struggle and was determined to establish the prin- 



THE EFFORT OF EUROPE 205 

ciple by the impeachment of Buckingham himself. He 
denounced the favorite in the ParHament of 1626 for ad- 
vising the King to commit unconstitutional acts, for his 
incompetence in office, and his corrupt and personal use 
of public funds. In spite of the King's threats, the Com- 
mons voted the impeachment of Buckingham, and arraigned 
the Minister before the House of Lords. 

Eliot's powerful presentation of the case was so convinc- 
ing that the King himself hurried into the House and 
sought to protect his favorite by assuming personal respon- 
sibility for the acts charged against him. He also ordered 
EUot to be arrested and imprisoned. The Commons 
demanded his release, imder refusal to do any public 
business imtil this should be effected. After a few days 
of hot struggle Eliot was set free, shorn of such offices as 
the King could take from him, and Parliament was again 
dissolved before judgment or the impeachment trial could 
be reached. It had, however, not voted the subsidies de- 
manded by the King, and he resorted to the hated system 
of benevolences to fill the treasury. This failing, however, 
recourse was next had to the equally hated system of 
forced loans. The Commissioners for the collection of the 
loans found universal hostility and resistance, which they 
undertook to overcome by every exercise of arbitrary power. 

Hampden was cast into prison because he said he feared 
to call down upon himself the curse in Magna Charta 
should he submit to having money extracted from him in 
this way. The situation was becoming so threatening that 
Buckingham advised the King to bring on a foreign war, 
hoping to raise the prestige of the Crown by a great mili- 
tary success. The campaign, in which he undertook to 
rouse and sustain the Huguenots of Rochelle against the 
French Kling, was a miserable failure and King Charles, 



2o6 GOVERNMENT AND LIBERTY 

overwhelmed still further with debt, was compelled to call 
Parliament together again and demand subsidies. 

This ParUament was the author of the famous Petition 
of Right of the year 1628. In this noted document, Parlia- 
ment laid the foundation for the personal Liberty and secur- 
ity of property of English freemen. It was a demand made 
upon the King that all taxation, forced loans, and benev- 
olences, without consent of ParUament, deprivation of 
goods, punishment, and outlawry, save by lawful judgment 
of one's peers, arbitrary imprisonment without stated 
charge, enactments of martial law in time of peace, billet- 
ing of soldiers and sailors, should cease forever, and that 
the Ministers and officers of the Crown should serve the 
King in accordance with the laws and statutes of the realm. 
An attack upon Buckingham, led by Eliot and Coke, dis- 
turbed the King to such a degree that he consented to 
yield his consent to the Petition of Right. This did not, 
however, save the favorite from the wrath of the Com- 
mons. They still demanded the removal of Buckingham, 
and the King still refused. In the ensuing wrangle over 
the question Buckingham perished by the assassin's dagger. 
As usual, however, this was no solution of the question. 
The aggrieved King appointed Weston, the Duke's favor- 
ite subordinate, as Lord of the Treasury, and the Duke's 
system of financial administration remained in force. 

There was, however, a thing which the nation and the 
Parliament dreaded even more than the loss of personal 
Liberty or of property, namely, the destruction of religious 
Liberty. The cause of re-established Romanism was tri- 
umphant on the Continent, and the ecclesiastical system 
promoted by Archbishop Laud and sustained by the King 
looked to the extermination of all rehgious dissent at 
home. The Commons were engaged in a most serious de- 



THE EFFORT OF EUROPE 207 

bate over the subject when the Speaker was handed an 
order from the King to adjourn. The members locked the 
doors of the House and held the Speaker down in his chair 
until the resolution was passed declaring any Minister of 
the Crown a capital enemy to the Kingdom and the Com- 
monwealth, who should propose innovations in religion or 
advise the collection of taxes not granted by Parliament, 
and every subject of the realm a betrayer and an enemy 
of EngHsh Uberty, who should voluntarily submit to such 
acts and demands. Thus ominously ended the Parliament 
of 1629, the last to be assembled for eleven years succeed- 
ing its dissolution. 

By order of the King the leaders of the Constitutional 
party in the last Parliament were thrown into prison where 
Eliot soon died, and the King began through two powerful 
agents, Wentworth and Laud, that very Wentworth of 
Yorkshire who had begun his public career as a stanch 
ConstitutionaHst, but who now became the most zealous 
promoter of Royal absolutism, to invent a scheme of Gov- 
ernment which would free him from the necessity of ever 
calling another Parliament. The chief work of Wentworth 
was to be the creation of a Royal standing Army and a 
Royal treasury independent of ParHamentary authority 
and Parliamentary grants, while Laud was to overcome all 
religious dissent and enforce religious uniformity. 

The Royal Exchequer now entered upon a course of 
general extortion. Knighthood was forced on the Gentry 
in order to make them pay a definite fine in order to ex- 
empt themselves from indefinite aids. Every person who 
had built a house outside the limits of London, as pre- 
scribed by James I, was forced to pay three years' rent. 
Marriage within forbidden degrees was heavily paid for 
in money. The Star-Chamber jurisdiction was turned into 



2o8 GOVERNMENT AND LIBERTY 

a means for filling the treasury. Monopolies of all sorts 
were created and sold. Quarrels and fights between per- 
sons of high rank were visited with severe money penalties. 
Customs were levied and collected on exports and imports. 
Benevolences and loans were demanded. And, finally, an 
old precedent according to which the port towns and mari- 
time counties loaned vessels for naval war was declared to 
give warrant to the King to levy taxes on these parts of 
the Kingdom for the building and maintenance of a regular 
Royal Navy. 

Wentworth, later named by the King Earl of Strafford, 
soon grew restless, however, of these petty retail methods. 
He evolved a larger plan. His idea was to take advantage 
of the situation in Ireland, where the Catholics and Protes- 
tants were much more evenly balanced than in England, 
and where each party in its hostility to the other was 
forced to a thorough dependence on the Crown, to create 
a Royal Army and an independent Royal treasury. The 
King appointed him Lord-Lieutenant of Ireland, and in a 
short time he had estabHshed in Ireland the model for the 
absolutism of Charles in England. 

At the same time Archbishop Laud was carr3dng out his 
scheme for the English National Church as a branch of 
the universal Church of which the Roman Church was 
only another branch. He could not conceive of a Church 
without Bishops as the media through which the Apostolic 
grace and power were transmitted. He, therefore, insisted 
on conformity, that is, upon the destruction of Puritanism, 
whose chief form at the moment was Presbyterianism, in 
Church Government, a form differing from Episcopahanism 
chiefly in the absence of Bishops, Bishops' Courts and elab- 
orate ritual, but not disputing the principle of a National 
Church, that is a Church of which all subjects of the state 



THE EFFORT OF EUROPE 209 

should be by law members. Laud all but succeeded, by 
driving the Puritan Ministers out of their pulpits, in re- 
establishing the exclusive Episcopal hierarchy and the eccle- 
siastical supremacy of the Crown. He went so far as to 
move the King to establish the Bishopric of Edinburgh 
and to issue a book of canons for Scotland, which abolished 
the Presbyterian system of that Kangdom. 

The high point of submission to these assumptions in 
civil and ecclesiastical Government was reached in the 
year 1636. In 1637, the resistance began which was to 
end in revolution. The Scots repudiated the re-established 
Episcopal system, and John Hampden refused to pay the 
ship-money tax levied upon him. In the latter part of 
this year Hampden's case was argued before the full bench. 
The decision was rendered in the spring of 1638. The 
Court vindicated the Royal authority to tax, without re- 
gard to Parliamentary prohibition or limitations, and pro- 
nounced void all Acts of ParHament militating with the 
King's prerogative to defend his Kingdom in the ways and 
through the means selected by himself. 

The irritation against the Judges produced by this de- 
cision was deep and wide-spread. The nation now saw and 
felt that it must do battle for its liberties. Matters were 
already seething in the North. The demand of the King 
for the submission of the Scots to the ecclesiastical Estab- 
lishment was met by the Covenant entered into by a great 
host in the Gray Friars Churchyard in Edinburgh to re- 
store Presbyterianism and expel the Bishops from the land. 
The Covenant was subscribed to, practically, by the Scotch 
nation, and it contained finally the demand upon the King 
for the assembly of a free Parliament. The King doggedly 
refused and prepared for war. The Scots had, however, 
anticipated him and a good army of ten thousand conscien- 



2IO GOVERNMENT AND LIBERTY 

tious men, under the command of Leslie and Montrose, 
met him at the frontier and offered him battle. The King 
was overawed and, instead of fighting, promised to assemble 
Parliament. The Commons again refused the King's de- 
mands until their grievances should be satisfied and, after 
a few days session, the Short Parliament of 1640 was dis- 
solved and with the Irish troops and subsidies brought 
by Strafford the King undertook the renewal of the struggle. 
But the Scots were already over the Une in Newcastle 
and in position to dictate terms, for the King's troops were 
deserting and England was practically on the point of in- 
surrection in his rear. There was nothing left for the de- 
feated and deserted King to do but to assemble Parliament, 
the Long Parhament of 1640. As the leader of the Com- 
mons in the Parliament appeared the Somersetshire Gentle- 
man, John Pym, the sole remaining member of that band 
of five, who had stood out in the ParHament of 1620 for 
constitutional Liberty with so much vigor. Coke, Cotton, 
Ehot, Wentworth, and himself. Wentworth was indeed 
still alive, but as the Earl of Strafford he was more than 
dead in his old character. Pym was the man who foresaw 
the whole course which the Revolution must take in order 
that it should proceed according to the forms, or at least 
fictions, of law, which is always a necessary condition for 
the success of anything requiring the approval of English 
thought. Pym's idea was that Parliament was superior 
to the King, since the earliest ParHaments of English his- 
tory chose the King, and since the later Kings held also 
chiefly by ParHamentary title, and that, therefore, if the 
King would not act with the Parhament, Parliament might 
regard the refusal as abdication and proceed to create, 
temporarily, at least, another executive agent. For all 
this he had historical precedent. But he went further and 



THE EFFORT OF EUROPE 211 

took his stand on the principle that the Commons were of 
more importance than the Lords in the Parliament and, if 
obstructed by the Lords, might act alone. For this he had 
no precedent, and could not appeal for justification to his- 
tory. We of to-day can see that, while in this he was not 
true historian, he was indeed true prophet. 

When this Long Parliament opened in the autumn of 
1640, it was immediately buried under petitions for redress 
from almost every constituency in the Kingdom. Nearly 
fifty committees were necessary to examine and report 
upon them. The Parliament then proceeded to undo the 
whole system of absolutism which Strafford and Laud had 
built up. It abolished the Courts of Star-Chamber and 
High Commission, deprived the Privy Council of the King 
and many inferior tribunals of their irregular and arbi- 
trary jurisdiction, pronounced ship money and all import 
and export duties levied without consent of Parliament 
illegal, ordered the assembly of Parliament every three 
years, without Royal writ, if necessary, threw Laud into 
prison, and by a Bill of Attainder sent Strafford to the 
executioner's block, and resolved that the existing Parlia- 
ment should not be dissolved without its own consent 
thereto. 

Terror-stricken, the King gave way before this resolute 
advance, but with a heart full of anger and revenge. The 
Scotch Army was now paid by Parliament and it withdrew 
from the northern border, and the King felt himself freer. 
He proceeded to Edinburgh and concihated the Scots by 
yielding to their every demand, and then spoiled it all 
again by intriguing with the Earl of Montrose to restore 
his arbitrary power in Scotland. 

At the same time the fall of Strafford had left Ireland in 
a state of anarchy, and the battle between Catholic and 



212 GOVERNMENT AND LIBERTY 

Protestant began. The massacre was almost indescriba- 
ble. The King looked upon the situation as a warning to 
England of what would happen when his Government 
should disappear, but the Parhament considered it a part 
of a Royal scheme for the restoration of Royal absolutism. 
Nevertheless, a certain reaction in the King's favor set in, 
and it was with much difficulty that Parliament passed the 
Act called the Remonstrance in November of 164 1, in which 
it was declared that Parliament had no design to aboUsh 
Episcopacy, but only to lessen the powers of the Bishops, 
secure the enforcement of existing laws against Papists, 
and the due administration of justice and also the appoint- 
ment of Ministers of the Crown in whom the Parliament 
had confidence. The Commons, however, passed a bill by 
a practically unanimous vote to expel the Bishops from 
the House of Lords. This was highly resented by the 
King and the Bishops, and the contest over the question 
resulted in riot and bloodshed and the mobbing of the 
Bishops themselves. The King undertook to arrest Pym, 
Hampden, and several others of the leaders of the Com- 
mons. He even appeared himself in the House with a 
retinue of courtiers for the purpose, but they had all escaped 
and the Royal conduct only diminished the reverence for 
the throne. 

The people regarded the act of the King as threatening 
the safety of Parliament, and armed bands began to 
gather around the buildings for its defense. The King now 
determined to disperse Parliament and maintain the 
throne by military power. He withdrew from Whitehall 
and began to collect forces by Royal commissions. The 
Commons intimidated the Lords until the latter agreed to 
the bill for excluding the Bishops from the House of Lords; 
and the Parliament appointed Lord Lieutenants of the 



THE EFFORT OF EUROPE 213 

militia in the Counties and organized an Army independent 
of the King. Both King and Parliament violated in these 
acts constitutional precedent. The King's partisans now 
withdrew from the Parliament and betook themselves to 
the King's camp at York, and the ParUament created as 
Executive power a Committee of Pubhc Safety, of which 
Hampden, HoUis, and Pym were the chiefs. 

The first battle, that at Edgehill in October of 1642, was 
indecisive. During the year 1643 the victory seemed in- 
clining to the side of the King. The death of Hampden 
at Chalgrave was a severe loss to the cause of the Parlia- 
ment. These experiences, however, brought Pym and his 
associates to the conclusion that they must gain the aid of 
the Scots by making Presbyterianism the State religion of 
Parliamentary England. This was effected through the 
Covenant entered into at the close of the year. This was 
the final work of Pym, whose death left the execution of the 
agreement in the hands of the "Committee of the two 
Kingdoms," which thenceforth conducted the war from 
the side of the Parliament. In July of 1644, the prepara- 
tions were so completed that the ParUamentary Army dealt 
the King's forces a telHng blow at Marston Moor. It was 
Oliver Cromwell with his brigade of Ironsides — in other 
words, rehgious fanatics — who had won the day, and from 
this moment forward, the Revolution entered upon a more 
radical course. Cromwell himself was not at first hostile 
to Presbyterianism, but a large part of his following were 
men who had broken away from the idea of a National 
Church of any kind, and had embraced the principle of the 
separation of "Church and State," and the independence 
of each rehgious community. Under their influence and 
impelled by the course of events, Cromwell now advocated 
the reorganization of the Army under leaders who were not 



214 GOVERNMENT AND LIBERTY 

members of Parliament, the abolition of all social distinc- 
tions in the ofl&cering of the forces, and a more vigorous 
prosecution of the war against the King. The poHcy of 
the Parliament had been not to destroy the King or the 
Kingship, but simply to drive the ICing to the acceptance 
of such Hmitations upon his power as the ParHament should 
demand. 

Cromwell's idea was now to remove all political considera- 
tions from the prosecution of the military movements and 
wage the war for victory, victory absolute and decisive, 
no matter what should become of the King or the King- 
ship. This plan was called "The New Model," and it 
was adopted by the ParHament. The result was that the 
young and progressive Fairfax supplanted the more con- 
servative Essex as Commander-in-Chief of the Parliamen- 
tary Army, while Parliament allowed Cromwell, though a 
member, to retain the command of his Ironsides for a little 
while. But that little while was a decisive period. Within 
its limits fell the battle of June 14, 1645, ^-t Naseby, which 
ruined the Royal cause and brought the war momentarily 
to a close. 

We now enter upon a new stage of the revolutionary 
movement, that in which the Presbyterians and the Non- 
conformists struggle for the mastery of the ParHament, 
and the King intrigues with each in turn with the purpose 
of restoring his lost absolutism. The organized strength 
of the Presbyterians was in the ParHament, that of the 
Independents was in the Army. It was now, therefore, a 
struggle between the ParHament and the Army. The 
King, who after Naseby had betaken himself to his Scots, 
was now handed over by the Commanders of the Scotch 
Army to a Committee of Parliament on payment to them 
of four hundred thousand pounds sterHng. The ParHament 



THE EFFORT OF EUROPE 215 

undertook to disband the Army and enforce Presbyterian 
uniformity, and the Army refused to be disbanded, created 
a Council of its own by electing two men from each regi- 
ment, naming them the Council of Assistants, and seized 
by force the person of the King. The Parliament turned 
furiously upon Cromwell as the instigator of these acts, 
and forced him to quit Parliament and betake himself to 
the Army. The Army now marched to London and de- 
manded toleration for the Independents and the expulsion 
of eleven of the chief Presbyterian leaders from the House 
of Commons. While the House would not expel them, 
the terror-stricken inhabitants of the city brought such a 
pressure upon them that they withdrew, and the Parlia- 
ment appointed a Committee to treat with the leaders of 
the Army, i. e., with Fairfax, Cromwell, and Ireton. These, 
however, thought that their best course was to treat with 
the King. There was certainly profound statesmanship 
in this view, and they now gave the King the great oppor- 
tunity of his Hfe to save his throne and rule thereafter as a 
constitutional Prince. They asked of him first of all the 
recognition of the freedom of religious belief and worship, 
the abolition of privileges and monopoly, the reform of 
judicial procedure, the cessation of arbitrary taxation, the 
reorganization of the House of Commons by a more liberal 
suffrage and a juster distribution of seats, the triennial 
assembly of Parliament, the control of the Army and 
Navy by Parliament for ten years, and the nomination by 
Parliament of the Ministers and high Officers of State. 

The King blindly and stubbornly pursued his idea of bal- 
ancing the Parliament and the Army against each other 
until both should become too weak to resist his arbitrary 
power. The confusion grew at every moment. The Lon- 
don mob invaded the Commons and forced the House to 



2i6 GOVERNMENT AND LIBERTY 

recall the eleven members whom a previous mob had re- 
quired it to expel. A large number both of the Lords and 
of the Commons now betook themselves to the Army, 
which marched into London, restored the fugitive Lords 
and Commoners to their seats, and reopened negotia- 
tions with the King. Encouraged by the open conflict 
between the Parliament and the Army, the King resolved 
to undertake a new Royalist movement. He escaped from 
his keepers, fled to the Isle of Wight, took refuge with the 
Governor of Carisbrook Castle, who treated the Royal 
guest as a prisoner, but who did not prevent him from 
corresponding with the Presbyterian Chiefs for the purpose 
of inciting another movement, which might result in the 
restoration of his unlimited power. The King counted 
specially upon the Scots, who in their extreme Presby- 
terianism preferred the King to the Independents. The 
Presbyterians now raised the King's standard in many 
quarters and a Scotch Army under the command of the 
Duke of Hamilton advanced into England. The renewal 
of the war in this sudden and reckless manner made the 
Army and its Chiefs, Fairfax, Cromwell, and Ireton, des- 
perate, and any future reconciliation with the King im- 
possible. In August of 1648 it came again to decisive 
battle at Wigan and Warrington, where the Royalists and 
Presbyterians were completely routed. The Army marched 
triumphantly into Edinburgh and reinstated the Duke of 
Argyle in control of the Kingdom, and then turned again 
to the South to deal with the Parliament and the King. 
The Council of Officers of the Army demanded electoral 
reform, a new Parliament, recognition of the supremacy 
of Parliament, change of the Executive into an elective 
ofJ&ce, and the bringing of the King to justice. Instead of 
yielding to these demands, the Parliament turned to the 



THE EFFORT OF EUROPE 217 

King. The Army now flung aside all consideration either 
for King or Parliament. It invaded the House of Commons 
and drove out all the members except the Independents. 
It seized the person of the Kling and confined him at Wind- 
sor. It drove the Rump House to enact a resolution form- 
ing a Court of Commissioners for the trial of the King, 
and when the resolution was opposed by the few Lords re- 
maining, it prompted the House to resolve and declare: 
''That the people are, under God, the original of all just 
power; that the Commons of England in Parliament assem- 
bled — being chosen by and representing the people — have 
the supreme power in this nation; and that whatsoever is 
enacted and declared for law by the Commons in Parlia- 
ment assembled hath the force of law, and all the people 
of this nation are concluded thereby, although the consent 
and concurrence of the King or House of Peers be not had 
thereto." 

The Commissioners appointed for the trial of the King 
went promptly forward with their work. In five days the 
process was finished and the King condemned to death for 
tyranny, treason, and murder. On the 30th of January, 
1649, a masked executioner severed the Royal head from 
the body and held it up to the gaze of the gaping multitude. 

The Revolution had reached its final stage. It had 
swept away King, Lords, Church, and Courts, and nothing 
now remained but an unlimited House of Commons as the 
sole and sovereign representative of the so-called people, 
with an Army to do its bidding. As yet the Revolution 
had done absolutely nothing in solution of the great prob- 
lem of the reconcihation of Government and Liberty. 
The despotism of the House of Commons was now as 
complete as that of the King had ever been. It was not 
even more benevolent. Strangely enough, the only thing 



2i8 GOVERNMENT AND LIBERTY 

which stood in the way of its practical as well as theoretical 
absolutism was the Army. The Council of Officers of the 
Army was in fact a truer representative of the nation than 
was the Rump ParUament. The Army and the Council 
of Officers were fully aware of this, and they insisted upon 
the dissolution of the Parliament and the election of another 
which would be more truly representative of the nation. 
The Council of Officers drafted a plan for such dissolution 
and new election. The Parliament took up the plan, and 
a bill in practical accordance with it was laid before it for 
discussion, but it became soon manifest that it had no in- 
tention of dissolving itself. The campaign in Ireland, the 
rising of the Scots in favor of the restoration of the Stuarts 
and the Dutch War occupied the attention of the Army 
for the next two years, and the Parliament still held on. 
By the beginning of the year 1653, the demands of the Army 
could be no longer unheeded or even delayed. The House 
agreed to dissolve in the following November, and the 
Council of Army Officers agreed to a reduction of the 
Army. Blake's Naval victory over the Dutch in February 
seems, however, to have given the House fresh courage. 
It now insisted that the members of the Rump House should 
all hold their seats in the new Parliament, and should be 
the judges both of the election and the fitness of the other 
members. The Council of Army Officers regarded such 
demands as dishonest and unendurable. On the 19th day 
of April, 1653, Cromwell strode into the House followed 
by a company of musketeers, and dissolved it by mihtary 
force. There was now no Government and no Sovereign 
left in England except the Army with its Council of Officers. 
This Council of Officers were not yet ready, however, to de- 
clare the Army to be the permanent Sovereign of England, 
and they themselves the permanent Government. They 



THE EFFORT OF EUROPE 219 

still preferred to regard the situation as temporary and ten- 
tative. They proceeded, therefore, to name a new Council 
of State consisting of eight Army OiEcers and four civiHans. 
This body created a Constituent Convention of one hundred 
and fifty-six men out of Hsts nominated to it by the various 
independent reHgious communities, and this body, known 
derisively in EngHsh history as the Praise- God-Bar ebones- 
Parliament, undertook the work of giving England a new 
Constitution. 

For nearly sLx months, from July to December, 1653, 
this strange body wrestled with the great problem, and 
then without accompHshing any result suddenly dissolved 
itself and delivered back to the "Lord General," that is, 
to Cromwell, "the powers received from him." This Con- 
vention had, however, appointed a new Council of State, 
and this Council drafted a plan called by them, "The In- 
strument of Government," and submitted it for adoption 
to the Council of Officers of the Army. The Council of 
Army Ofi&cers now felt compelled to act as a Constituent 
Convention and give England a new Constitution. This 
Instrument of Government which they now adopted pro- 
vided, first, for the assembly of a new Parliament consist- 
ing only of a House of Commons of four hundred and 
sixty members, four hundred from England, thirty from 
Scotland, and thirty from Ireland, elected by male citizens 
of legal age, and possessing real or personal property to 
the value of two hundred pounds sterUng, excluding only 
Catholics and those who had actually fought for the King's 
cause, and, second, for an Executive Power, entitled a 
Protectorate, which it conferred on Cromwell, and third, 
for an Executive Council, or Council of State, whose mem- 
bers should be originally appointed by the Protector, but 
no member of which could be removed by him except with 



220 GOVERNMENT AND LIBERTY 

the consent of all the others. The Instrument provided 
for triennial Parliaments, which alone could make law or 
impose taxes, and limited the power of the Protector in 
matters of diplomacy and war, and the appointment of 
officers and the disposal of the military and naval forces 
by the advice and approval of the Council. The Govern- 
ment thus set up was considered as tentative, requiring a 
nunc-pro-tunc ratification by the Parliament to be assem- 
bled under the provisions of the Instrument. The elections 
to this Parliament were duly held, and it assembled in 
September of 1654. 

There is no question that this Parliament was fairly rep- 
resentative of the nation, excluding only the relatively few 
Royalists who had served in the King's Army, on the one 
side, and a very few radical democrats, on the other. The 
distribution of the representation was also fairer than any 
that had gone before. The rotten boroughs and pocket 
boroughs, which before this had figured so largely in the 
Parliamentary representation, were excluded therefrom 
and the seats which their representatives had formerly oc- 
cupied were now held by members from Counties and 
populous towns. And finally both Scotland and Ireland 
were for the first time participant in this body. Notwith- 
standing these facts, however, Cromwell assumed from the 
first an attitude toward it which was bound to result in 
strife. Cromwell's idea was that this Parliament should 
consider the constitutional questions as having been set- 
tled in the Instrument enacted by the Council of Army 
Officers and should proceed at once to questions of legis- 
lative detail, while the Parliament considered the Instru- 
ment as provisional only and assumed to revise this as 
well as legitimize it by its approval. Cromwell met this 
attitude by forbidding any member of the Parliam.ent to 



THE EFFORT OF EUROPE 221 

enter the House without giving his written promise not to 
attempt to alter the Government as constructed by the 
Instrument. No King of England had ever committed 
any more arbitrary act than this. One hundred of the 
members spurned this unheard-of demand and remained 
outside. The others gave the promise, but immediately 
proceeded to do just what Cromwell had forbidden, only 
in a manner which served as a sort of loop-hole of escape 
from downright breaking of word. Cromwell was not the 
man, however, to be held by forms. He looked straight 
into the substance of things. In January of 1655 he pro- 
nounced the dissolution of the body, without any reference 
to a new election or the assembly of another Parliament. 

From a legal point of view Cromwell's position was 
now a bald usurpation and genuine tyranny. He crushed 
all resistance in Scotland and Ireland and also in 
England with an iron hand and sent the ringleaders of 
the same to the block. He divided the whole country 
into major-generalships and executed the ordinances pro- 
mulgated by himself as the law of the land through the 
Generals appointed by himself for the purpose. When 
everything had been subordinated to his own unlimited 
will, and everything prepared to forestall all opposition, 
he summoned the packed Parliament of 1657, in which 
he controlled the majority of the members, whom he 
forced to give apparent legitimacy to all he had done 
and was doing. Although a majority of the members 
were his own creatures, still he allowed no member to 
enter the House without his written pass. It was from 
such a Parliament that Cromwell secured the legitimation 
of what he had done and the adoption of a Constitution. 
This Constitution contained provisions for a Parliament 
of two Houses, the one consisting of elected members, the 



222 GOVERNMENT AND LIBERTY 

other of members to be appointed by Cromwell and his 
successors, and for the office of Protector or Executive. 
The Parliament undertook to restore the Kingship and to 
confer it upon Cromwell and his descendants but this 
plan shipwrecked upon the opposition of the Army. The 
Parliament thought that, as King, Cromwell would be 
obliged to rule less arbitrarily than as Protector. Whether 
Cromwell's reason for rejecting the Kingship was that he 
desired to preserve his unlimited power, or that he con- 
ceived the prejudices against the Kingship were too deeply 
rooted in the masses for its successful re-estabHshment, or 
that he himself was too sincerely Repubhcan to Hsten to 
such a proposition, can hardly be determined now. His 
refusal left him in possession of a power more despotic than 
any EngHsh King had ever wielded, and it was only to be 
expected that he would quarrel with this ParUament which 
had come into being as his own creature. It broke out over 
the question of the title to be given to the members of the 
Upper House. Cromwell assumed to settle this question 
himself since they were appointed by him. He called them 
Lords. The Commons resented this, and Cromwell dis- 
solved them in February of 1658. He was now, however, 
rapidly approaching his end. The irritation in which he 
constantly lived was telling upon him more and more. 
He suffered with continual attacks of fever and on the 
3d of September, 1658, he passed from earth. So great, 
however, was his influence that his naming of his own 
.weak and incompetent son Richard as his own successor 
was universally acquiesced in. 

With his death, however, the reaction of the years be- 
tween 1658 and 1688 had actually begun. By advice of 
his Council the new Protector summoned a Parliament 
under the system of election obtaining under King Charles. 



THE EFFORT OF EUROPE 223 

The Cromwellian system of Government was immediately 
made a subject of bitter criticism. The Council of Army 
Officers answered immediately with a demand for a mili- 
tary man as their Commander-in-Chief, instead of the 
Protector, who was only a civihan. The Commons de- 
manded their dissolution and they demanded the disso- 
lution of the Commons. The Protector yielded to the 
Council of Officers, and when the Commons had been dis- 
persed, they dispensed with the Protector and, seizing the 
Government temporarily, they called together the remnant 
of the Long Parliament, the Rump, which Cromwell had 
dissolved by military force in 1653. Not quite one hundred 
of the members got together and resumed the functions of 
a Parliament. This body demanded the dismissal of two 
of the most objectionable of the Army Officers. These 
immediately dispersed the Parliament and marched their 
forces northward to check the Scotch Army under Monk 
marching southward. The once invincible Army of Crom- 
well actually melted away before the resolute movement 
of the Scots and the friendly reception with wliich they 
were met at the hands of the EngHsh. Monk entered Lon- 
don without resistance. The members of ParHament got 
together again, resolved to dissolve and ordered a new 
election of the Commons. This new body, known in Eng- 
lish history as the Convention, at once began preparations 
for the restoration of Royalty, but was anticipated by 
General Monk and his Scots, who had already recalled the 
King. 

Making his own declaration of principles, Charles II 
proceeded from the Netherlands to England and landed 
amid universal acclaim at Dover almost at the moment 
when the Convention was voting: "That according to the 
ancient and fundamental laws of the Kingdom, the Govern- 



224 GOVERNMENT AND LIBERTY 

ment is and ought to be, by King, Lords, and Commons." 
The concentration of all power without Hmitation in the 
hands of a single body, whether that body should be King, 
Protector, General-in-Chief, Lords or Commons, was now 
universally felt to be incompatible with Liberty. All were 
now conscious that the Revolution had failed to solve the 
great problem of the reconciUation of Government with 
Liberty, and had sacrificed Liberty to Government even 
more completely than the system of James I and Charles I 
had done. With this fruitful experience the men of Eng- 
land, Scotland, and Ireland must begin again the effort 
for the solution of the great problem. 

The existing Convention set immediately about the work 
of establishing the new order. By an Act of Indemnity 
and Oblivion it barred any universal persecution for poHt- 
ical acts. Only thirteen of Charles I's Judges were executed 
and only twenty persons were disquaHfied from holding 
public office. Likewise, while the Crown resumed posses- 
sion of the Crown domain and the Bishops and Royalists 
gradually slipped back into their old estates, the titles to 
all property acquired by purchase, although its sale may 
have been occasioned by fine and sequestration, were con- 
firmed by the Convention, and no claims for compensation 
for losses sustained by the former owners were allowed. 
Star Chamber, High Commission, monopolies and arbitrary 
taxation were barred from revival. The sole power of the 
Parliament to tax was firmly fijced. The standing Army 
was disbanded, the King being allowed to keep a few regi- 
ments only as his bodyguard, and being recognized as the 
Commander-in-Chief of the mihtia. A revenue of one 
million two hundred thousand pounds sterling was granted 
to the King for life, and one hundred thousand pounds more 
annually for his surrender of his feudal rights of wardship 



THE EFFORT OF EUROPE 225 

and marriage. The Convention was by large majority- 
Presbyterian, but when it dissolved on the eve of the elec- 
tion of 1 66 1 the tide of the reaction was flowing high and 
when the House assembled it was found that the Cavaliers 
had the Parliament within their grip. 

This body proceeded now to more reactionary mea- 
sures especially on the ecclesiastical side. It admitted the 
Bishops to their ancient seats in the House of Lords. It 
ordered the burning of the Covenant. It required all its 
members to receive the communion at the beginning of 
the session. It renewed the Act of Uniformity, and it 
denied legality to all ecclesiastical authority not conferred 
by a Bishop. The Non-conformist Clergy were swept out 
of their position and the restored Anglican Church started 
forward on its course again leading to the principle of ab- 
solute submission to the Royal power. 

The King himself did not at first appear to favor the 
Parhamentary Act of Uniformity. He caused a bill to 
be introduced into Parliament which allowed the King to 
exempt persons from the penalties of this Act, who could 
not conscientiously conform to it, but who Hved peaceably 
and performed their religious devotions in their own way 
without scandal. It was perceived that, under this power, 
the King might estabhsh toleration for Roman Catholicism 
again, which was in fact his secret purpose. The Non- 
conformists themselves would not support the proposition. 
On the other hand, Parliament forced the King to exile, 
by Royal order, the Roman Catholic Priests, and passed 
an act called the Conventicle Act, which forbade assem- 
blies of more than five persons for rehgious worship other 
than the Episcopalian. This Act not only put an end to 
Roman CathoHc worship, but with another Act requiring 
the expelled Non-conformist Clergy to take oath never to 



226 GOVERNMENT AND LIBERTY 

attempt any alterations of the Government, either secular 
or ecclesiastical, it put an end also to Non-conformist wor- 
ship. 

It was now to be seen whether the Restoration with 
King, Lords, Commons, Courts, and established Church 
contained the forces rightly balanced to reconcile Govern- 
ment with Liberty. The pinch was first felt, naturally, 
in the enforcement of religious uniformity. Thousands of 
the Non-conformists, both lay and clerical, were thrown 
into prison solely because of their religious opinion, until 
soon the sympathy of the nation was roused in behalf of 
tolerance. The question now was what part of the govern- 
mental machinery would ally itself with the national sym- 
pathy and acquire from it the strength not only to protect 
individual conscience but to become itself supreme. The 
Parliament and the established Church stood solidly to- 
gether. The individual was thrown back upon the King 
and the Royal Courts, and this is about the same thing as 
saying that the individual was thrown back upon the 
King alone to protect him against the reHgious tyranny of 
the established Church, since the Judges were subject to 
dismissal by the King at his own pleasure. This was soon 
to prove itself a worthless reliance. The King's insincerity 
in his policy of toleration became more and more apparent. 

He followed secretly, but doggedly, two lines of conduct 
in his administration, the one looking to the restoration of 
Catholicism at home and the other to an alliance with 
Louis XIV in international pohtics. The two Hues, how- 
ever, were ever converging until they very nearly coalesced, 
for friendship with the absolute Grand Monarch of France 
meant hostility to the Protestant Powers, and therefore a 
subsidy from him which would enable Charles to dispense 
with Parliament and proceed with a freer hand in his 



THE EFFORT OF EUROPE 227 

ecclesiastical policy. He undid the union with Scotland 
and Ireland in order to have a better chance for the re- 
estabUshment of Catholicism and Royal absolutism in 
these countries. He tricked his Ministers one after an- 
other as to his real purposes. He changed the Municipal 
Charters in order to pack the House of Commons with his 
adherents. In spite of Ministers, Parliament, and Judges 
he got his way about most things and that too without 
coming into direct conflict with the principal enactments of 
the Long Parhament. For eighteen years he worked on 
until he seemed so near upon the attainment of his plans, 
that he began to drop his disguise. The obtaining from 
Parliament of a large force and large supplies under pre- 
text of an impending war with France and then allowing 
King Louis to have his own way in consideration of a sub- 
sidy paid by him left the French King with the mastery 
of Continental Europe and King Charles with an Army of 
twenty thousand men and a million pounds sterling in 
his treasury. When these facts began to be known, sus- 
picion of the ultimate purpose of King Charles culminated 
in the assertion by Oates and Bedloe, shady characters 
both, it is true, that there existed a plot for the restoration 
of Roman CathoHcism in England in which the Queen her- 
self was impHcated. It is also true that King Charles him- 
self was designated as the chief victim of the plot as he was 
to be murdered in order that his declared Romanist brother 
James might ascend the throne. It was a queer and con- 
tradictory statement, but it manifested the suspicion which 
universally prevailed that there was something rotten in 
the existing situation. King Charles's duplicity was on 
the point of exposure and he saved himself from this 
humiliation by consenting to the calling of a new Parlia- 
ment and the forming of a new Ministry. 



228 GOVERNMENT AND LIBERTY 

The dread of the revival of Romanism finally took the 
shape of a plan to exclude James from the succession. The 
bill engineered by the Earl of Shaftsbury passed the Com- 
mons. Shaftsbury's project contemplated the elevation of 
the Duke of Monmouth, the eldest of the King's natural 
children, to the throne, while the wiser heads were for 
bringing in the famous WilHam of Orange, the husband of 
James's daughter Mary. On account of this division in 
the views of the members of the King's Council, the King 
was able to defeat the bill altogether in the House of Lords 
and hold ParHament in abeyance until his own death se- 
cured the succession to the Catholic James. 

James mounted the throne in February of 1685, pledging 
himself to protect the National Church and preserve the 
laws. The ParHament which he summoned proceeded 
from the electorate which Charles had prepared, and was 
overwhelmingly Royalist. With such encouragement the 
new King drove recklessly onward. He increased the 
standing Army. He filled the offices with Roman Catholics 
contrary to the Test Laws of ParHament. He restored 
High Commission. He resumed the diplomatic afl&Hation 
with King Louis. He prosecuted, persecuted, and executed 
the chief opponents of his arbitrary rule, until at last the 
loyal RoyaHst Parliament itself revolted. The leaders of 
the RoyaHsts or Tories, of the High Churchmen, and of 
the Moderates or Whigs joined in an invitation to WilHam 
of Orange to come over and assume the reins of Govern- 
ment, restore EngHsh Liberty, and protect the Protestant 
religion. 

In November of 1688, and with an Army of some twelve 
or thirteen thousand men, WilHam landed on the south 
coast and entered Exeter. The nation rose to assist him 
and James fled the country, after having endeavored to pro- 



THE EFFORT OF EUROPE 229 

duce a state of anarchy as his final legacy. But the Lords 
present in London assumed as Privy Councillors the reins 
of Government temporarily and yielded the same to 
Prince William on his arrival in the City. The Lords 
supporting the Revolution then assembled and with all 
persons having been members of the Commons, who could 
be brought together, and the Aldermen and Members of 
the Common Council of the City of London, formed a 
provisory Parliament, both Houses of which invited Prince 
William to assume the provisional Government of the 
country and to issue a call for the election of delegates 
to a constitutional Convention. 

This body met in January of 1689, and with the existing 
House of Lords undertook to reorganize the Government, 
re-establish Liberty, and protect the Protestant religion. 
After some hesitation and debate they elected Prince 
William and his wife Mary, daughter of the fugitive King, 
joint sovereigns and vested the administration of Govern- 
ment in the hands of WilHam alone. On the 13th of 
February, 1689, they presented to the sovereign pair the 
Declaration of Rights, the observance of which by them 
was the condition upon which the authority to govern was 
vested in them. First, it denied to the King the powers 
to dispense with the execution of the laws or demand aids 
and contributions or to maintain a standing Army without 
the consent of ParHament. Then it claimed the full free- 
dom of discussion in both Houses against all Royal inter- 
ference, as well as against interference from every other 
quarter. Then it asserted the right of every subject of the 
realm to a free choice of the representatives in the House 
of Commons, to freedom of petition to that body for re- 
dress of grievances, and to even-handed and complete 
justice from the Courts. 



230 GOVERNMENT AND LIBERTY 

The newly elected Sovereigns assented to the conditions 
and formally accepted the Crown. The Convention Parlia- 
ment changed the Declaration of Rights into a formal 
Constitutional Statute called the Bill of Rights, and added 
to it many other fundamental principles, among them the 
power of Parliament to depose the King, change the laws 
of succession to the throne and choose the King at its 
pleasure, and the Parliamentary rule of an annual grant 
of subsidies and an annual grant of the authority of the 
King to hold a standing Army, through the form of the 
annual Mutiny Act. 

The Revolution of 1688 made the Parliament supreme 
over the Crown, as it was already supreme over the Church. 
The Courts, being still a branch of the Royal Administra- 
tion, came now also to be subordinate to ParHament, in 
the sense, of course, that a Parliamentary Statute took pre- 
cedence of a judicial decision, and that ParUament could 
by impeachment remove any Judge from office. Inasmuch 
as the Convention Parliament then transformed itself by 
a simple declaration into the ordinary Parliament, we have 
as the result of the Revolution of 1688, the sovereignty of 
the ordinary legislative body in the Government. 

At first it seemed as if the new King did not understand 
this situation. He held the administration of law and 
justice in his own hands and acted through officials ap- 
pointed by himself and responsible only to himself. He 
had taken his Ministers both from the RoyaUsts, or Tories, 
as they began to be called, and from the Parhamentarians, 
or Whigs, as they now began to be termed, and they had 
no coUegial organization, each Minister being as to the 
other the independent servant of the Crown. The first 
years of King William's reign were full of misunderstand- 
ings and of conflict between the Crown and the ParHament, 



THE EFFORT OF EUROPE 231 

until at last the King, at the suggestion, it is said, of Robert 
Earl of Sunderland, found a modus vivendi, which mani- 
fested, however, the supremacy of the Parliament over 
the Crown. He began taking all of his Ministers, or heads 
of the administrative departments from the same party, 
the majority party, in the Parliament and then gave them 
a coUegial organization, which finally made them stronger 
than the Crown itself. In consequence of this arrangement 
the factions, so to speak, in the Houses became fused into 
two great parties, the ruling party and the opposition, and 
the English system created by the Revolution of 1688 de- 
veloped these principles in detail down to 1832 without 
any fundamental changes. From 1832 to the present the 
English Constitution has taken on its most modern phase 
and v/ill be treated in the next chapter of this book. 

Our final point of consideration in this chapter is how 
this new order of authority left the question of the relation 
of Government to Liberty. The answer is simple and 
brief. It sacrificed all Individual Liberty, as well as all 
governmental agents, to the supremacy of Parliament. 
The benevolence of Parliament, the law-making branch 
of the Government, was all the Individual could look to 
for the definition and defense of his Immunity against the 
arbitrariness of Government. He had escaped the tyranny 
of the King, but had fallen under that of the ParHament, 
which might become even more terrible than anything 
which had preceded it. In a word, the Revolution of 1688 
had failed to solve the great question we are investigating, 
the reconcihation of Government with Liberty, from the 
constitutional and juristic standpoint, altogether, and had 
furnished the Liberty of the Individual only the poHtical 
guarantee, which claims that the legislative branch of the 
Government will delimit, protect, and defend the natural 



232 GOVERNMENT AND LIBERTY 

realm of Individual Immunity against governmental power. 
The insufl&ciency of such a guarantee is now revealing itself 
in every direction. 

The Revolution on the Continent must be treated as 
beginning in, and proceeding from, France. We may re- 
gard the absolute Monarchy in France as having become 
complete as to its emancipation from all legal Hmitations 
by the act of Louis XV in arresting and exihng, on July 
19, 1 771, the members of the ParHament of Paris. This 
was the body of Jurists, which held the power of giving 
final legitimacy to the King's edicts by registering them as 
of legal force. It was understood, as the custom of the 
realm, that they might refuse to register a Royal edict, 
but that such refusal might be overcome by the King him- 
self appearing in the Parliament, assuming its presidency 
and ordering registration. Such a session of the ParHa- 
ment was called a "ht de Justice." It was rare that such 
a thing ever happened and it roused great dissatisfaction 
when it did. The usual order of things was that an edict 
of the King should be regarded as contrary to the his- 
torical Constitution of France whenever the Parliament 
of Paris refused its registration. When now Louis XV 
abolished this institution there was nothing left standing 
between the despotism of the Royal Government and the 
Liberty of any person. 

Louis XV survived this deed only about three years and 
one of the earliest acts of his successor, Louis XVI, was to 
recall the exiled Jurists and re-establish the Parliament 
with its ancient powers and functions. It must be said, 
however, that the King was not probably so much moved 
thereto by any consideration of the Liberties of his subjects 
as by the purpose of checking the movements of his pro- 



THE EFFORT OF EUROPE 233 

gressive Finance Minister, Turgot, who was proposing 
to tax the property of the Nobles, even almost to the point 
of confiscation, in order to restore to soundness the fear- 
fully disordered finances of the Kingdom. At any rate, 
it was the opposition of the Parliament to the plans of 
Turgot, which, more than anything else, finally induced 
the King to dismiss him. He was followed by Necker 
the Geneva banker, who after five years of hesitation and 
makeshift was driven by the ever-increasing need. and de- 
moralization of the Royal treasury to suggest something 
much of the nature of what Turgot had proposed. This 
caused his downfall in May of 1781. 

During the period of Necker' s regime, the King had, 
from the standpoint of the preservation of his Monarchy, 
made the great mistake of aiding the American Colonies 
in their War of Independence against England. The ex- 
periences of his soldiers in America were positively demoral- 
izing to Monarchic institutions, and the cost of the imder- 
taking brought the treasury still nearer to complete bank- 
ruptcy. After the downfall of Necker things went rapidly 
from bad to worse. Six years more of extravagance and 
corruption followed when Calonne informed the King that 
the end had been reached upon the line they were follow- 
ing and that he desired to lay a statement of the finances 
before an assembly of prominent men for advice and assis- 
tance. The King called such a body together in the year 
1787. In history the name given to this body of men was 
the Assembly of the Notables. Calonne's plan, as proposed 
to this body, was the subjection of the Nobles and Clergy 
to taxation, the abolition of the road-making duty of the 
peasants, the Corvees, and the collection of the revenues 
by the Royal officials instead of farming the same to pri- 
vate individuals. This was virtually coming back to the 



234 GOVERNMENT AND LIBERTY 

scheme offered by Turgot thirteen years before. It was 
immediately recognized as such, and the poor Minister, 
who had for years pampered the Court and the privileged 
classes in order to gain a popularity with them, which 
would tide him over the crisis, now saw himself deserted 
and despised by them all and dismissed by his Royal 
Master. 

Nevertheless, the Notables felt obliged to offer the sub- 
stance of his propositions to the King, who sent them to 
the ParUament of Paris for registration. That body re- 
fused, declaring that the Estates General alone could levy 
a new tax. These were ominous words from the Parlia- 
ment of Paris. For one hundred and seventy-five years, 
now, there had been no meeting of the Etats-Generaux, 
and all this time the Parliament had registered the King's 
edicts in regard to taxation as well as to other things, with- 
out making any such representation concerning the con- 
stitutional law of the realm. In the position which it now 
assumed it can hardly be regarded as having been sincere. 
It was more probably attempting to defend the Nobles, 
to which class its members chiefly belonged, from taxation 
by Royal edict. But it had given expression to the popular 
desire for a legislative body, in which some form of general 
representation might take the place of the Royal absolutism 
in enacting the statutes of the land. The demand for the 
assembly of the Etats-Generaux grew from day to day 
and developed into such a popular clamor that the King, 
under the advice of Necker, whom he had recalled to the 
head of the treasury, summoned them to meet on the 5th 
of May, 1789. 

How the members should be chosen, whether the three 
orders, Clergy, Nobles, and Third Estate, should sit and 
vote together or apart and, if apart, what weight each 



THE EFFORT OF EUROPE 235 

Estate should have, were difficult questions to settle, so 
long had there been no assembly of the Estates. Even 
the collective name which they should bear was disputable. 
The lawyers belonged for the most part to the Third Es- 
tate and argued for double representation of that Estate, 
for assembly in a single body of all the Estates, for vote 
therein by persons and not by Estates, for majority de- 
cision, and for the name National Assembly for the whole 
body. The Parliament of Jurists held, however, that the 
three Estates should sit separately and vote by Estates. 
There is no question that the Parliament was correct as 
to the precedent. The trouble was that the French peo- 
ple of 1789 had outgrown the precedent of 16 14 and 
would have no more of it. 

The King yielded so far to the popular view as to order 
the choice of as many members to represent the Third 
Estate as both the others. He did not, however, direct 
whether the three Estates should sit together or how the 
voting in the decision of questions should be reckoned. 
At the first meeting for the opening ceremonies they were 
brought together in one great hall, and, strangely enough, 
no separate hall was provided for the Third Estate for 
their succeeding meetings. On the day after the opening, 
they naturally betook themselves to the large hall again 
and, finding this closed, to the tennis-court and waited, 
their leaders said, for the members of the other Estates to 
come in and verify the elections. Many of the lower 
Clergy and a few of the Nobles did appear and threw their 
lot in with the Tiers Etat. This body now numbered some 
seven hundred of the twelve hundred called by the King 
to represent the whole. They assumed the name of Con- 
stituent Assembly and proceeded to the verification of 
the elections of the members from all the Estates. On the 



236 GOVERNMENT AND LIBERTY 

23d of June the King ordered a joint session of the three 
Estates in the great hall and there scolded the Third Es- 
tate roundly for its presumptuous conduct, and com- 
manded the separate meeting and voting of the Estates. 
But it was now too late for this. When the King retired, 
attended by the Nobles generally and the Prelates, the 
Commons remained seated, and when the Royal Master 
of Ceremonies directed them to withdraw, Mirabeau an- 
swered for them that they were there by the will of the 
people and would retire only at the point of the bayonet. 
The Court was intimidated by this bold stand. The Duke 
of Orleans with some fifty of the Nobles went over to the 
Third Estate and on the 27 th of June, four days after the 
joint session, the King ordered the union of the Estates in 
a single body and procedure therein by vote of the majority 
of the members. 

The body was now the Constituent Assembly, the sover- 
eign body of the Kingdom, and it proceeded to form a 
Constitution for France. Behind it stood the Parisians, 
the new National Guard, and the organized Clubs of the 
Revolutionary parties, while the Royal troops were unre- 
liable and more than half inclined to fraternize with the 
Revolutionists. The danger was that the radical populace 
of the city of Paris from its vantage-ground of nearness and 
compactness would overwhelm both the King and the 
National Constituent Assembly. 

The Assembly hastened to form and adopt a Constitu- 
tion. It contained first of all a Bill of Rights and Immuni- 
ties of the Individual against all governmental power, but 
it created no means and power for protecting this realm 
of Liberty against governmental encroachment. In fact 
it abohshed the ancient Judicial body, the Parliament of 
Paris, which might have exercised that function. In this 



THE EFFORT OF EUROPE 237 

Constitution of 1790, the Kingship itself was not even 
guaranteed against the action of the Legislature. This 
body was made to consist of a single chamber and the 
Royal veto over its acts was made suspensive only. A 
repetition of the majority vote could overcome it. 

Meanwhile things were rapidly advancing toward the 
catastrophe. The Nobles were leaving the country. The 
Parisians stormed, took and destroyed the Bastile, finding 
just seven common criminals in it and not one political 
prisoner. The women of Paris, crazed with hunger, marched 
to Versailles, invaded and intimidated the Assembly, and 
carried the Royal Family with them back to Paris and 
virtually imprisoned them in the Tuileries, while the peas- 
ants throughout the country pillaged and burned the castles 
of their Lords. 

From August, 1789, to April, 1791, the King made no 
attempt to leave the city, and when one day in the latter 
part of this month, he undertook to go out to Saint-Cloud 
for a day's shooting, he was halted by the mob and driven 
back to his palace prison. From this time the thought of 
freeing himself by flight from the unbearable situation 
came uppermost in his .mind. On the night of the 20th 
of June (1791) the Royal Family with a few attendants 
escaped from Paris, but were recognized and captured a 
few days later at Varennes within twenty-five miles of the 
German forces waiting to receive them. They were imme- 
diately brought back to Paris and placed under strict guard 
in the Tuileries, and the King was temporarily deprived 
of his powers and prerogatives. He turned now to La- 
fayette, the Commander of the National Guards, as his 
only hope. Lafayette held the Parisian mob in check and 
defended the National Constituent Assembly, which had 
also removed to Paris, against its onslaughts. The Assem- 



238 GOVERNMENT AND LIBERTY 

bly voted an amnesty to the Varennes fugitives, restored 
the King to his functions, and his freedom within the city, 
and revised and completed the Constitution, which was 
accepted by the King as the Constitution of France, on 
the 29th of September, 1791. 

The revision went no further in the solution of the great 
problem of the reconciliation of Government with Liberty 
than the original draft. It contained still the elaborate 
Bill of Rights and Immunities for the Individual against 
governmental power, but it created no means for making 
the same effective. The ordinary Legislature, of a single 
Chamber, was made the final interpreter of the Constitu- 
tion in this respect as well as in all other respects. What 
defense that would be to Liberty was quickly seen. The 
members of the first Legislative Assembly were immediately 
chosen and met in October, 1791. It was seen at once that 
the new body was far more radical in its composition than 
the Constituent Assembly had been. In the heated atmos- 
phere of Paris, with its mob of the Forum calling itself 
the people, and with the excitement inspired by the news 
of the approach of the foreign troops marching into France, 
it was inevitable that the rasher elements in this radical 
Assembly should gain the upper hand, and that the Parisian 
mob should furnish the physical power for the realization 
of the most extreme measures. 

In June of 1792 the populace broke into the Assembly in 
collusion with its extreme elements, the Jacobin members, 
overawed it and then invaded the King's palace. The 
King's conciliatory attitude quieted them temporarily, but 
on the loth of August the renewal of the insurrection pre- 
cipitated the catastrophe. The Royal Family were ar- 
rested and incarcerated in the Temple. The legislative 
body disappeared and the second Constituent Assembly, 



THE EFFORT OF EUROPE 239 

called the Convent, composed chiefly of Jacobins, that is 
extreme radicals, began its work. It assumed unlimited, 
i. e., sovereign power, abolished the Kingship, proclaimed 
the Republic, abolished the Christian Calendar, i. e., the 
Christian reUgion, and beheaded the King. It formed a 
new Constitution, that of 1793, but never put it into opera- 
tion. Under the leadership of Danton, Robespierre, and 
Marat, it established and for three years practised the most 
terrible and revolting tyranny known to human history. 
It demonstrated fully what an unlimited Legislature and 
unrestrained democracy will do with Individual Liberty. 
A day without fifty heads rolling from the guillotine was 
regarded as a dull day by the so-called people. 

Finally universal terror brought moderation. Every 
man feared that his own cruelty would come back to him. 
In a fit of moderation the Convent established the Consti- 
tution of 1795 and dissolved. This Constitution created 
a Legislature of two chambers and an executive board of 
five men. It did nothing, however, for the estabHshment 
of Individual Liberty. The Directorial system was still 
governmental tyranny, exercised with a little more benevo- 
lence. It was only a first step to the Consulate of Bona- 
parte, the MiHtary Commander, which was reaHzed by 
the victorious coup of the i8th of Brumaire, i. e., November 
19, 1799. 

The Constitution of the Consulate, in its two forms of 
the Triumvirate of 1799 and the sole Hfe Consulate of 
Bonaparte of 1802, conferred practically unlimited power 
upon Bonaparte, and did nothing for the constitutional 
Liberty of the Individual. In comparison with what had 
gone before, Bonaparte's rule was both benevolent and 
beneficent. He was not only successful against foreign 
foes, but he centralized the administration of France in 



240 GOVERNMENT AND LIBERTY 

the hands of the Chief Executive and established the 
equahty of all before the law, which meant in last analysis 
the equal subjection of all to the rule of the Consul, and, 
after 1804, to the completely sovereign rule of the Emperor. 

Naturally the Imperial system did really nothing toward 
the solution of the great problem of the reconciliation of 
Government and Liberty. Every appearance of the sort 
was a mere veil of Imperial despotism. Nevertheless, the 
education received by the masses in the Army prepared 
them first to obey and then to govern, and in the long run 
restored through military discipline a self-control most valu- 
able to civihzation. Moreover, the march through Europe 
of the Napoleonic Armies sowed the seeds of the Revolu- 
tion broadcast, so that it became, in the course of the half 
century following, the Continental European Revolution 
instead of the French Revolution simply. 

The overthrow of Napoleon and the Imperial system in 
1 8 14 by the Allied Powers of the Continent and England 
led to several important constitutional results. The first 
was the restoration of the Bourbons to the throne of France 
in the person of Louis XVIII and the estabhshment by 
him through Royal edict of the French Constitution of 
1 8 14, a quite elaborate document containing a Bill of 
Rights and provisions for a bicameral Legislature, which 
was more a Council to the King than a real lawmaking body, 
the members of one Chamber of which were appointed by 
the King and those of the other elected under a very re- 
stricted suflfrage. Still there were no means created for 
defending the Liberties and Immunities of the Individual 
against the encroachments of either the Legislature or the 
Executive. So far as any such means were concerned, the 
Kingship of Louis XVIII was as absolute as that of Louis 
XVI had been. Nevertheless, it was a great gain that 



THE EFFORT OF EUROPE 241 

there was a Constitution, and that it contained a quite 
definite realm of Individual Liberty, even though it should 
remain largely unrealized in practise. 

The theory of the Charte Constitutionnelle of 18 14 was 
that it was granted by the King. Theoretically, therefore, 
the King was the Sovereign as well as the Executive Gov- 
ernment in the French system of 18 14. It was, therefore, 
within the power of the King, as Sovereign, to amend, re- 
vise, or even annul, the Constitution. The French nation, 
on the other hand, regarded the Charter in the light of a 
contract between it and the King, and looked upon its 
provisions as the conditions upon which it accepted him 
and his rule. In 1830 the King, then Charles X, attempted 
to suspend certain of these provisions, and the result was 
the July Revolution of 1830, which ended by the Legisla- 
ture, provided in the Charter of 18 14, assuming the sover- 
eignty, drafting and adopting a new Constitution, and 
electing Louis Philippe, Duke of Orleans, King. 

The Constitution of 1830 contained, likewise, a Bill of 
Individual Rights and Immunities, but no means of main- 
taining them against the power of either the Legislature 
or the King. The problem of the reconciliation of Govern- 
ment and Liberty remained, thus, still unsolved. Eighteen 
years more of social and national development passed with- 
out any corresponding changes in the Constitution. As I 
have said, this Constitution was adopted by the Legislature 
created by the Charte Constitutionnelle of 1814. This 
Legislature, acting thus as a constitutional Convention, 
exercised sovereign power. It was itself based upon a very 
narrow electorate, which, on account of the high property 
qualification demanded for membership in it, numbered 
not over three hundred thousand persons for the whole of 
France, about one voter to one hundred persons. After 



242 GOVERNMENT AND LIBERTY 

1840 the demand for broadening the electorate somewhat 
and for excluding the Royal officials from seats in the Legis- 
lature became quite general, and the opposition of the 
King to these moderate reforms precipitated the Revolu- 
tion of 1848. 

This Revolution was confined almost exclusively to the 
City of Paris, but the King fled rather precipitately, and 
the Provisory Government which formed itself and assumed 
power and control called upon the people to elect by uni- 
versal suffrage members to a Constituent Convention. 
This Convention framed and ordained the Constitution of 
1848. This Constitution contained a Bill of Individual 
Rights and Immunities as well as provisions for a Govern- 
ment consisting of a Legislature and a President, but again 
no means for making these Immunities effective against 
Government. Louis Napoleon Bonaparte was, strangely 
enough, chosen President by popular vote, and immediately 
began the work of discrediting, browbeating, and black- 
guarding the Legislature, ending in his coup d'etat of 
1851 and in the formation of a Constitution by him vest- 
ing virtually unhmited power in the hands of the President. 
He submitted this Constitution to the direct vote of the 
people, i. e., to the plebiscite, and they approved by an 
overwhelming vote. The following year he asked the 
people to make him permanent Executive, Emperor, and 
received again their approval with almost complete una- 
nimity. 

This instrument ignored Individual Liberty altogether. 
It failed, therefore, utterly to offer any solution of our 
problem of the reconciUation of Government with Liberty. 

Finally, the overthrow of the second Napoleonic Empire 
in France, occasioned by the defeat of the Imperial forces 
in the War of 1870 with the Germans, led to the formation 



THE EFFORT OF EUROPE 243 

and adoption of the present Constitution of the French 
Republic by a Constitutional Convention, the members 
of which were elected by universal manhood suffrage. 
This Constitution will be examined from our point of view 
in the next chapter of this work. 

I have spoken of the Revolution of 1789 as the French 
Revolution. This is true in a narrow sense only. France 
was the starting-point of a Revolution which spread in aU 
directions producing results throughout all Europe, and 
even farther, similar to those effected in France. Even 
before the triumphant march of the French Armies under 
the command of Bonaparte sowed the seeds of the Revolu- 
tion all over the Continent, the expulsive power of its prin- 
ciples had made itself felt. The movements of Austria to 
succor the Hapsburg Queen of France and the emigrant 
Nobility provoked the French nation and Government to 
take up arms against the Germans in April of 1792, and the 
success of the French arms against both Austria and Prussia 
carried French control, and with it the ideas of the Revo- 
lution, to and across the Rhine. The Austrian Netherlands 
were annexed to the French Repubhc and the Swiss Con- 
federation was transformed into the Helvetic Republic on 
the French model, while the Dutch Repubhc was in like 
manner changed into the Batavian Republic. 

The leadership of the French arms having now fallen 
into the hands of Bonaparte the work of the poHtical trans- 
formation of Europe was pushed rapidly forward. In 
Italy, after chasing out the Austrian, Spanish, and Papal 
Governments, he founded the Cisalpine, Ligurian, Cispa- 
dine, Tiberine, and Parthenopian Republics, covering the 
whole territory of the peninsula except Venice. After be- 
coming Consul and then Emperor, Bonaparte continued 
his poUcy of exciting the people, or rather the lower orders 



244 GOVERNMENT AND LIBERTY 

of the people, to revolt against their existing Governments. 
He proclaimed both Liberty and equality, but in practise 
only equality was realized, equality before the Master of 
the World, the Emperor. Equahty before the law and 
Government is, however, one of the chief elements of the 
Civil Right, and the Napoleonic Codes are to be consid- 
ered as having accomplished this whenever they were put 
in force. 

Under the promise or pretext of liberating the vassals 
from their Feudal oppressors, Bonaparte invaded the Holy 
Roman Empire of the German Nation, piercing into its 
most Eastern parts, Austria and Prussia, and destroyed 
it, erecting in its place the Confederation of the Rhine, 
composed of all its parts, except Austria, Prussia, Hol- 
stein, and Pomerania, into which Confederation he intro- 
duced the principles of the new French law. On the south 
he invaded Spain and Portugal, setting aside the old dy- 
nasties and placing his own appointees in their stead, and 
through these transforming the Feudal inequaHties into the 
dead level of subjection to the law of the Empire. As he 
progressed he lost sight, more and more completely, of the 
revolutionary idea of Liberty, and gave himself up, more 
and more exclusively, to reahzing the principle of absolute 
equality under his own universal despotism, and when the 
nations of Europe realized that his ultimate object was 
World Empire, rulers and subjects allied themselves to 
throw oS the yoke. 

The restoration of the old authorities in Government 
and in Church did not, however, restore the old Europe. 
Everywhere the ideas of national sovereignty, constitu- 
tional Government and Liberty were left as the indestruc- 
tible deposit of the great upheaval, and when the restored 
Governments began again the work of ignoring the con- 



THE EFFORT OF EUROPE 245 

stitutional Compacts, the Revolution burst forth again, in 
1820-1 in Greece, Moldavia, Southern Italy, and Spain, in 
1830 in France, the Netherlands, and the Southern and 
middle states of the German Confederation, and in 1848 
again everywhere. The transformations produced by it 
in France have been already recounted. Elsewhere, while, 
perhaps, not of so great importance as in France, they still 
mark the march of progress toward the nationaHzing and 
constitutionalizing of the European states. The move- 
ments of 1 820-1 in Italy and Spain were crushed by the 
power of Russia, Prussia, and Austria in alliance for the 
purpose of combating the Revolutionary ideas everywhere, 
but resulted in the independence of Greece. The move- 
ments of 1830, however, besides the overthrow of the Bour- 
bon system in France, left the independent constitutional 
Kingdom of Belgium and the constitutionalizing of the 
South German states as permanent results, started anew 
the agitation in Spain, which led to the outbreak of 1836, 
the assembly of the constitutional Convention and the for- 
mation and adoption of the Constitution of 1837, Spain's 
first genuine Constitution given by the people to the 
Monarch instead of by the Monarch to the people, and 
gave such an impetus to the Chartist or Constitutional 
party in Portugal under the lead of the Count of Saldanha 
as to bring final success in the estabhshment of constitu- 
tional Government there even before the movement of 
1848 set fairly in. 

With the upheavals of the year 1848 all Europe west of 
Russia yielded to the principles of the Revolution, which 
I have designated as national independence, constitutional 
Government, and Civil Liberty. 

In Italy Charles Albert, the King of Savoy, Piedmont, 
and Sardinia, gave his subjects a liberal Constitution and 



246 GOVERNMENT AND LIBERTY 

offered himself as the leader in the development of the 
national state with constitutional Government for Italy. 
The outburst was, however, too violent for such a conser- 
vative course and democratic Republics sprang up in the 
middle and south of the peninsula. In the German Con- 
federation the two great states, Austria and Prussia, were 
now drawn into the movement and Constitutions of Gov- 
ernment, containing also Bills of Right, were declared in 
force by the Emperor Ferdinand and King Frederic Wilham 
IV, and a Convention of men high in authority and pop- 
ular confidence assembled in Frankfurt, drafted a Consti- 
tution for a new German Empire, and offered the Imperial 
Crown to the King of Prussia; and Switzerland secured 
its first national Constitution. In Denmark, the consti- 
tutional Convention, the first genuine constitutional Con- 
vention of Danish history, assembled in Copenhagen in 
the spring of 1849 and framed the instrument which, with 
a few amendments, is still in force, while Sweden-Norway 
held steadily along the course of constitutional progress 
entered upon by them at the close of the Revolution of 
1789-1815. 

The reaction of 1850-1 checked the national constitu- 
tional movement momentarily in the German Confederation 
and in Italy. The Constitution of the new German Em- 
pire formed at Frankfurt in 1849 never went into operation. 
The union of Italy under the House of Savoy was checked 
by the victories of Austria over the Sardinian King Charles 
Albert, the Revolution in Hungary was crushed by the aid 
of Russia, and the Spanish Court entered upon its work 
of restoring the ancient regime. 

All Europe was now, however, so Revolutionary in spirit 
that the shghtest spark would fire the entire social structure 
again. This time it came from the East. The oppression 



THE EFFORT OF EUROPE 247 

of the Turks over the Christian inhabitants of the Osman 
Empire led to the declaration of a protectorate over them 
by Russia, which France and England resisted as opening 
the way for the conquest of Turkey. The Crimean War 
of 1853-5 followed, and, in spite of the defeat of Russia 
by the alUes, Wallachia and Moldavia united themselves 
to form Roumania, and attained virtual independence of 
Turkey, with her Constitution of 1866, formed and adopted 
by a real Constituent Convention, and with a HohenzoUern 
Prince as her elected King; Servia was freed from its 
Turkish garrison, and Greece attained her Constitution 
of 1864, and elected a Prince of the Danish House as her 
King. At the same time, Victor Emmanuel, King of Sar- 
dinia, was, with the help of the Emperor Napoleon, driving 
the Austrians out of Italy, and Prussia was driving them 
out of Schleswig-Holstein, and then out of the new German 
Union. The results of these movements were the unity 
of Italy under the Constitution of the Savoy-Sardinian 
Monarchy, the unity of the states of the German Confed- 
eration north of the Main under the lead of Prussia, and 
the understanding between Austria and Hungary repre- 
sented by the constitutional agreement of the year 1867. 

In Spain also the Revolution burst forth afresh in the 
year 1867, expeUing the Bourbons and creating the Con- 
stitutional Republic, which was soon modified, however, 
by the adoption of the Royal Executive, i. e., the executive 
holding on the principle of hereditary succession, and the 
restoration of the Bourbons on the basis of the Constitu- 
tion of 1876, the present Constitution of the Kingdom. 

The reaction of 1 850-1 was also felt in the constitutional 
development of Portugal, but after the death of Queen 
Maria da Gloria, the Crown yielded to the demands for 
Parliamentary Government, i. e., for administration by the 



248 GOVERNMENT AND LIBERTY 

Ministers selected by the Crown from the major party in 
the Chamber of Deputies. As under such administration 
the country became more democratic the Chamber of Peers 
was changed to a House of life Peers by appointment of the 
Crown, i. e., appointed by the Ministers of the Crown. 
More out of disgust at the uselessness and extravagance 
of the Crown and the dissoluteness of the young King, than 
for any serious political reasons, the Revolution of 1910 
drove the Royal House out of the Kingdom, and established 
the Republic with the present Constitution. 

In the Franco-Prussian War of 1870, the Revolution 
culminated in Germany bringing all the German states 
North and South, except, of course, Austria, which had 
been driven out of the North German Union of 1866, into 
the new Empire resting upon a popular basis, the Con- 
stitution of 1 87 1, the present Constitution of the great 
German state. 

These great national movements excited the Christians 
of the Balkan peninsula to revolt in 1875 against Turkish 
rule, or misrule, and in 1878 four new states were recognized 
as belonging to the European concert of nations, Roumania, 
Servia, Bulgaria, and Montenegro, while Bosnia and 
Herezgovina were placed under Austrian administration 
and have now been incorporated into the Austro-Hungarian 
Empire. These new states have finally succeeded in creat- 
ing for themselves constitutional Governments of a fairly 
liberal nature. 

At last in 1905 the autocracy in Russia could no longer 
withstand the cry of the people for participation in the 
Government, and for a domain of Civil Liberty. The Czar 
issued his decree creating the Duma and defining its 
powers, and guaranteeing a considerable sphere of In- 
dividual Freedom. This constitutional edict has been 



THE EFFORT OF EUROPE 249 

amended from time to time until we have the present Con- 
stitution of the Empire. 

At the same time Norway broke from its union with 
Sweden and vindicated its right to independent national 
existence, holding on to its old Constitution changed only 
in respect to the establishment of its own throne and King. 

The net results of the whole revolutionary movement 
in Europe, beginning with the dethronement of Charles I 
in England and closing with the establishment of the Rus- 
sian Duma, have been the organization of states upon the 
basis of national development; the distinction between the 
sovereign power and the Government, and in some cases 
their separate organization; the creation of Legislatures 
representing the people on the basis of a liberal and in 
some cases a radical electorate; the investment of the 
Legislature with the full and exclusive power of making 
ordinary law; the more or less complete control of the 
administration of the Government through Ministries rep- 
resenting the Legislatures; and the formulation, as part 
of the constitutional law, of a Bill of Rights and Immuni- 
ties of the Individual against the power of Government. 
These constituted not a single step, but many steps, of 
advance in solving the great problem of the reconciliation 
of Government and Liberty. States based upon nations 
meant states in which a consensus of the people concern- 
ing the fundamental principles of right and wrong, of Gov- 
ernment and Liberty, had been more or less clearly reached, 
states where the sovereign power back of the Consti- 
tution had become distinguished from the powers vested 
by it in the Government: states, therefore, which had at- 
tained those principles of representation and Hmitation, 
which alone mark the transition from arbitrary to consti- 
tutional Government. These advances in political civiliza- 



250 GOVERNMENT AND LIBERTY 

tion had also produced a fairly clear conception of the 
domain of Individual Liberty, both in outline and content. 
The Constitutions produced by them proclaimed the 
exemption of a large sphere of individual activity from 
physical compulsion, whether the attempt to exercise it 
should come from another individual or an association of 
individuals, or from the Church, or from the Government 
itself, and they placed the Legislatures in the position to 
protect the same against the Executive, whether Prince or 
President, through its control over the Ministry of the 
one or through its power to impeach the other. But they 
discovered no constitutional way for protecting Individual 
Liberty against the possible tyranny of the Legislature. 
Men seemed to think, notwithstanding the experiences of 
the French Convent of 1793, that, as the Legislature rep- 
resented the people, it would protect the Individual against 
oppression from any and every quarter. But this is found 
to be true only where the suffrage is limited to men of in- 
telligence, character, and means, and eligibility to a seat 
in the legislative body is conditioned upon the same quali- 
ties. Where universal suffrage is the source of legislative 
mandate the legislative majority is a far more consummate 
despot than any King or Prince has ever shown himself 
to be. Against such a Legislature the Individual is in the 
most helpless condition possible. It has rarely any sense 
of justice and is almost never influenced by considerations 
of mercy. It readily becomes the instrument through 
which brute force tyrannizes over intelhgence and thrift, 
and seeks to bring society to an artificial dead level. Until 
a political system shall have provided the means for pro- 
tecting the Individual in his constitutional immunities 
against this most ruthless organ of Government, it will 
not have solved our great problem. It will, even, in its 



THE EFFORT OF EUROPE 251 

transfer of the balance of governmental power from the 
Executive to the Legislature, have placed a more formida- 
ble obstacle in the way of its solution. 

Before examining critically the present European Con- 
stitutions upon this vital point, there is one more reflection 
to be made regarding the course of the Revolution through 
the different parts of Europe, which will be helpful in many 
directions. Every student of history is struck with the 
fact that, among the more or less Latinized populations, 
the Revolution was far more violent, bloody, and radical 
in its results than among the peoples of Teutonic stock; 
and the explanation usually given for this very important 
dissimilarity is that the hold of the autocratic power was 
stronger among the Teutonic people. To me this is not 
a satisfactory explanation. The greater the repression the 
greater is usually the explosion. We must go far deeper 
to find, in my opinion, the correct explanation. Certainly, 
from the period of the Reformation onward, we find some- 
thing in the Teutonic mind which distinguishes its methods 
and results very widely from those of the Romanic. That 
something the Continental Teutons call Vernunft — reason. 
Their great philosophers and publicists of the seventeenth 
century worked out in thought its principles of Hfe and 
society, both public and private. When all the bonds of 
external power had been loosed and broken by resistance, 
revolt, and revolution, here was still a force which con- 
stituted a compelling and controlling behest. Not mere 
will was regarded as sovereign, but will guided by reason. 
So universal was this philosophical and ethical sense, that 
pasjion yielded readily to the consciousness of right. While 
the populace rather than the people in Latin Europe was 
destroying, in its thirst for blood, the old ruling classes, 
which contained most that there was of intelligence, char- 



252 GOVERNMENT AND LIBERTY 

acter, and capacity, or putting them under its feet, the 
Teutonic nations, especially the Germans, were finding 
the way under the ''rule of reason" to conserve all classes, 
to give to each class and each individual the due and proper 
place and weight in the poUtical, civil, and social state, 
and to employ all the genius, talent, capacity, and energy 
within their bounds for the highest development of the 
Individual and for the general welfare of the Community. 
Radical theories and reckless appUcations of them play, 
therefore, a far less role in the course of the Revolution 
in the Teutonic, than in the Romanic, world. The Teu- 
tonic nations have felt their way more slowly and have 
followed rather the method of constant repair, of fitting 
the new into the old, than the method of completely de- 
molishing the old and replacing it completely with the 
crude and untried new. When one compares Kant with 
Rousseau, the Hohenzollerns with the Napoleons, one 
cannot help feeling the genuine conservatism or better 
conservationism, if I may coin a word, of the one, and the 
reckless destructiveness of the other. We shall be con- 
tinually conscious of this distinction when we come now 
to examine the provisions of the present Constitutions of 
the European states from the point of view of the great 
problem whose solution we are so anxiously seeking. 



CHAPTER X 

THE PRESENT CONSTITUTIONS OF THE EUROPEAN STATES 

Europe has now twenty-five states excluding Turkey. 
Of these, five are usually termed Republics, i. e., states 
with elective Executives as well as Legislatures, viz.: 
Andorra, France, Portugal, San Marino, and Switzerland, 
and twenty which are usually termed Monarchies, i. e., 
states having hereditary Executives, viz. : Austria, Bel- 
gium, Bulgaria, Denmark, Germany, Great Britain, Greece, 
Hungary, Italy, Lichtenstein, Luxemburg, Monaco, Mon- 
tenegro, Netherlands, Norway, Roumania, Russia, Servia, 
Spain, and Sweden. Of these, two of the Republics, An- 
dorra and San Marino, and two of the Monarchies, Lich- 
tenstein and Monaco, are too insignificant to be considered. 
We will, therefore, confine our investigations to the other 
twenty-one. 

It is not, of course, our problem, in this study to draw 
under consideration all of the details of these Constitu- 
tions. We are concerned only with those provisions fix- 
ing the domain of Government and that of Liberty and 
adjusting them to each other. 

The first point of our inquiry is, therefore, whether these 
Constitutions or any of them rested, in the first place, upon 
a sovereign power, organized back of both Government 
and Liberty, independent of both, supreme over both, the 
originator of both and the determiner of their relations to 
each other, and whether they, in the second place, contain 
the continuing organization of such a power for the future 
adjustments of these two domains to each other. 

253 



254 GOVERNMENT AND LIBERTY 

Unless we can find this basic principle and institution 
in the historic development of these states and in the pro- 
visions of these Constitutions then we need go no further 
with our query whether they have solved the problem of 
the reconciHation of Government with Liberty. Without 
this primal authority in constitutional history and consti- 
tutional law, there can be, at best, only a truce in the con- 
flict between Government and Liberty, but no genuine 
peace between them. 

A cursory study of the original formation of these Con- 
stitutions reveals the fact that nine of them, viz. : those of 
Austria, Great Britain, Hungary, Italy, Russia, Luxemburg, 
Montenegro, the Netherlands, and Sweden proceeded from 
the existing Governments or some part thereof, the first six 
from the Crown and the last three from the ordinary Legis- 
lature. They lack, therefore, the primal indispensable pre- 
requisite, the organized Sovereign back of both Government 
and Liberty, for the solution of our great problem. The 
Constitutions of the other twelve, on the other hand, viz. : 
those of Belgium, Bulgaria, Denmark, France, Germany, 
Greece, Norway, Portugal, Roumania, Servia, Spain, and 
Switzerland fulfil in their origin this primal condition, all 
having proceeded from an authority back of, and supreme 
over, both Government and Liberty, viz.: the nation in 
sovereign organization. 

This almost fatal defect in the formation of the nine 
Constitutions first mentioned may, however, in time be 
cured, provided the Constitutions contain, and provide 
for, the organization of a continuing sovereign power, sep- 
arate from, independent of, and supreme over, the ordinary 
Government and the Liberty of the Individual for amend- 
ing and revising these instruments. On the other hand, 
those Constitutions which were originally created by such 



THE EFFORT OF EUROPE 255 

a sovereign power would be hopelessly disabled from effect- 
ing the continuing adjustments between Government and 
Liberty necessary to the solution of our problem, from age 
to age, unless they contain provision for the independent 
sovereign organization in continuity. Let us now, there- 
fore, proceed to the examination of all these instruments 
from this most fundamental point of view. 

In the first place, the Constitutions of Great Britain, 
Hungary, Italy, and Spain provide no organization of the 
sovereign power independent of the Government at all. In 
England and Italy there exists an occasionally invoked 
custom of making a constitutional question the issue at 
an election of Legislative members. In Spain and Hun- 
gary not even this shadow of an independent sovereign 
power exists. 

Every other state of Europe, except France and the 
small states, Bulgaria, Greece, and Switzerland, organizes 
the sovereign power within the Government or some 
branch thereof instead of back of the Government and in 
independence of it. For example, the continuing sover- 
eignty in the Russian Constitution is the Czar, since the 
Legislature cannot even consider a question of constitu- 
tional law except upon his initiative, and since its action 
thereon is subject to his veto. Likewise in the Constitu- 
tion of Montenegro. The other Constitutions with the 
exception of those of Bulgaria, France, Greece, and Swit- 
zerland attribute the sovereign power to their Legislatures, 
usually acting in some different way in the making of con- 
stitutional law from that employed in the making of ordi- 
nary law, as by the requirement of an increased majority, 
or of simple repetition of the vote by succeeding Legisla- 
tures, or by the same Legislature in succeeding sessions, 
or of a combination of both of these methods. None of 



256 GOVERNMENT AND LIBERTY 

these fulfil the primal and indispensable condition for the 
solution of our problem. 

We are, hence, limited in our inquiry to the Constitu- 
tions of Bulgaria, France, Greece, and Switzerland. The 
Constitution of Bulgaria organizes the continuing sover- 
eignty of the state in a National Convention, called by the 
King, and acting upon propositions submitted to it by 
the ordinary Legislature, which shall have been voted by 
a two-thirds majority of its members. That of Greece 
does likewise as to the ratifying body, but gives the initia- 
tive to the ordinary Legislature by repetition of the pas- 
sage of the proposition at separate legislative sessions. 
That of France organizes the personnel of the two Houses 
of the ordinary Legislature into a National Assembly or 
Convention, and then leaves this body to itself in both the 
initiation and adoption of constitutional measures. The 
ordinary Legislature or either House thereof can, however, 
prevent the organization of this sovereign body by simply 
not passing the vote which authorizes its members to par- 
ticipate in it. In fact the failure of one House to do this 
prevents also the members of the other from co-operating 
in the formation of the sovereign body. Finally, the Swiss 
Constitution provides an organization of the continuing 
sovereignty which is as yet the last word in the constitu- 
tional development of Continental Europe. It is the voters 
in National unity and Cantonal unity, so that decision is 
reached by a majority of the voters of the Nation, voting 
upon the question, provided this majority contains a ma- 
jority of the voters voting on the question in a majority 
of the Cantons. The Swiss Constitution also provides an 
independent way of initiating this procedure and of initi- 
ating the proposition to be laid before the sovereign body, 
viz. : by the demand of fifty thousand voters to the Legis- 



THE EFFORT OF EUROPE 257 

lature. This demand may be made in the form of a propo- 
sition fully drafted for amending the Constitution, and the 
Constitution orders that it be submitted by the Legisla- 
ture to the Nation in sovereign organization for adoption 
or rejection. The Constitution provides, it is true, other 
ways for initiating the propositions for revision or amend- 
ment, ways through which the ordinary Legislature exer- 
cises more or less discretionary power, but inasmuch as it 
provides this one independent way, independent of any 
discretionary action by the Government, and inasmuch as 
it requires every proposition for constitutional change, 
however initiated, to be submitted to the Nation in sover- 
eign organization back of both Government and Liberty, 
it may be said to have fairly provided this primal element 
and fundamental authority for the solution of the problem 
of the reconciliation of Government and Liberty. 

None of the other three comes so near to a satisfactory 
solution of this element of our problem. The Constitu- 
tions of both Bulgaria and Greece fail to secure the inde- 
pendent action of the sovereign body provided by them 
in that they vest the initiative in the ordinary Legislature 
exclusively, and the Constitution of France, while avoid- 
ing this defect, allows each Chamber to prevent the assem- 
bly and organization of the sovereign body. 

The Constitution of Switzerland is, therefore, the only 
one among those of all the states of Europe, which furnishes 
us with a fair foundation and a fair start in the solution 
of our great problem. All the others confound the sov- 
ereign body with the Government or some part thereof in 
such a way as to leave no sphere for Liberty into which 
the Government may not, in some manner and degree, 
intrude. 

While the existence of a sovereign body, separate from, 



258 GOVERNMENT AND LIBERTY 

independent of, and absolutely controlling over, both 
Government and Liberty is the first condition for the solu- 
tion of our problem, as already explained, still we must 
not imagine that this alone is sufficient. Two other things 
at least must be carefully considered and successfully con- 
structed, the two main creations of sovereignty, viz.: the 
domain of Civil Liberty, and the structure and powers of 
Government in so far as they relate to the maintenance 
and protection of that domain. 

Concerning the former, first, we may say that the Con- 
stitutions of all the European states with the exception of 
those of Austria, Great Britain, France, Germany, and Hun- 
gary contain a well-defined sphere of Individual Immunity 
against governmental power, what is generally termed the 
Bill of Rights. It is easy to understand why the Consti- 
tutions of Great Britain and Hungary are lacking in this re- 
spect. These states really have no Constitutions in the 
same sense that the others have. In them, as I have al- 
ready explained, the ordinary Legislature exercises un- 
limited power. It exercises the sovereignty. Hence any 
limitations upon it in behalf of the Individual would be only 
self-limitation, that is, a limitation which it may remove, 
so far as the Constitution is concerned, at its own pleasure. 
Such a limitation is in law no limitation. In the British 
and Hungarian systems there cannot thus be such a thing 
as a constitutional Immunity of the Individual against 
governmental power. The freedom of the Individual is 
simply legislative permission which may be withdrawn at 
any moment by the ordinary Legislature through an ordi- 
nary act. It is quite true, as a matter of fact, that the 
Individual enjoys a large sphere of freedom in these two 
states, larger than in many others, but not as a matter of 
constitutional law. 



THE EFFORT OF EUROPE 259 

It is also easy to understand why the Constitutions of 
the German Empire and of the Austrian state in the 
Austro-Hungarian Imperial Confederation contain only a 
fragmentary and incomplete provision for this general realm 
of Individual Immunity against the powers of Government. 
Both of these states have the system of Federal Govern- 
ment and of that kind of Federal Government which vests 
only enumerated powers in the central Government. In 
such systems it is not always considered necessary for the 
instrument which organizes the central Government and 
confers powers upon it to contain also a defined sphere of 
Individual Immunity against governmental power, since 
the Constitutions of the Commonwealths within these 
Unions with Federal Governments may, and generally do, 
contain such provisions. This is exactly the situation in 
regard to the Commonwealths of the German Empire, 
and in considerable degree in regard to the Provinces of 
the Austrian state. Nevertheless, it must be considered 
a serious defect in the national Constitutions of these two 
great Imperial states that they do not contain provisions 
constructing and expressly delimiting a sufficient and sat- 
isfactory sphere of Individual Immunity against all gov- 
ernmental power, central as well as local. Without this 
they certainly cannot be regarded as having furnished 
what must be termed the second indispensable element 
in the solution of the problem of the reconciliation of Gov- 
ernment with Liberty, viz. : the concept and content of that 
realm of Liberty as a part of their national constitutional 
law. 

It is, on the other hand, not at all easy to understand why 
the French state with its more perfect conception and in- 
dependent organization of the sovereign power back of, 
and supreme over, all Government and with its centralized 



26o GOVERNMENT AND LIBERTY 

system of Government should not have created, in its 
present national Constitution, a well-defined sphere of 
Individual Immunity against governmental power. It has, 
indeed, been said that this Constitution, formed under 
great stress and great pressure both from within and with- 
out, is fragmentary and incomplete. But it has been 
amended several times, and may be rather easily amended 
at any time, and it is now forty years old. One can- 
not help the feeUng that the French statesmen are not 
disposed to give the Liberty of the Individual a place in 
their constitutional law. The French have so often had 
the experience of the excesses of Liberty that they seem 
to have become somewhat shy of laying any constitutional 
limitations on Government in its behalf. There must be 
some such reason for this great defect in the present French 
Constitution. The first act of the French National Con- 
stituent Assembly of 1789 was the enactment of the "Decla- 
ration of the Rights of Man," on the 26th day of August 
of that initial year of the constitutional development of 
modern France, and this great instrument contains as its 
sixteenth Article these momentous words: "Toute societe 
dans laquelle la garantie des droits n'est pas assuree, ni 
la separation des pouvoirs determinee, n'a point de consti- 
tution." In plain English this means that there is no such 
thing as constitutional Government without a series of 
constitutional Hmitations upon its powers imposed by the 
sovereign Nation in behalf of Individual Liberty. Accord- 
ing to this doctrine the present Constitution of France is 
no Constitution at all but simply a Charter of Government. 
Let us now turn our attention to the contents of this 
realm of Individual Liberty, or rather of Individual Immu- 
nity against the powers of Government. It will be entirely 
safe to say that the provisions in all these Constitutions 



THE EFFORT OF EUROPE 261 

touching this subject are derived more or less directly from 
the famous French "Declaration of the Rights of Man" 
passed by the National Constituent Convention of the year 
1789. This Declaration covers not only the Civil Liberty 
of the Individual, but contains also the assertion of several 
fundamental political rights. For the sake of logical clear- 
ness this part of the Declaration may be omitted. 

In the sphere of Individual Immunity against the power 
of Government, the Declaration places the rights to life, 
liberty, and property, or, stated on the reverse, the Im- 
munity against the power of the Government to take the 
life, Hberty, or property of the Individual. The French 
Assembly, crude as was its view, saw, however, that this 
initial statement needed both definition and Hmitation. 
It defined, in the further provisions of the Declaration, 
personal liberty to be freedom from arbitrary arrest, from 
arrest, detention, and prosecution except in the cases and 
in the manner prescribed by law, that is from arrest, de- 
tention, and prosecution at the discretion of the King or 
his officials. What we now call the Executive branch of 
the Government was then regarded and termed the 
Government. And when the Declaration uses the term 
law, it defines the same as being the expression of the 
general will, not the will of the Government. The Decla- 
ration, however, makes no distinction between constitu- 
tional law, i. e.j law made by the sovereign Nation, and 
statute law, i. e., law made by the Legislature. 

The Declaration defines, in the second place, the Im- 
munity of the Individual in the security of his property 
against the power of Government to mean that private 
property could be taken from its owner only for public pur- 
poses as determined by law, and only in the manner de- 
termined by law, and only upon just compensation being 



262 GOVERNMENT AND LIBERTY 

rendered to the individual owner by the Government, and 
that no contributions or taxes should be exacted from the 
Individual by the Government except such as had been 
authorized by law, by the general will. All this is only 
a verbose and rather clumsy way of saying what we now 
express in a single sentence, viz.: "that no person shall be 
deprived of life, liberty, or property without due process 
of law," which must not in criminal matters, at least, be 
retroactive. The Declaration also proclaims the Immunity 
of the Individual in his reUgious behef and worship from 
the power of Government, in so far as the same may not 
come into conflict with the pubHc order as established and 
determined by law. It further proclaims the Immunity 
of the Individual against the power of Government in the 
formation and expression of his opinions Hmited by re- 
sponsibility for the abuse of this Immunity as determined 
by law. Finally, it proclaims that the purpose of poUtical 
association and of Government is the conservation of these 
Liberties of the Individual. 

There is no question that the French statesmen drew 
most largely upon EngUsh history in their construction of 
this famous instrument, and it is also probable that the 
Constitution of the United States of America drafted two 
years before this "Declaration of the Rights of Man" ap- 
peared, exercised some influence upon their thought. 

The existing Constitutions of the present states of Europe, 
except those of the five above mentioned, contain these 
Immunities of the Individual against governmental power 
and most of them have extended and elaborated the same 
in very considerable degree. For example, all sixteen of 
these Constitutions, those of Belgium, Bulgaria, Denmark, 
Greece, Italy, Luxemburg, Montenegro, Netherlands, Nor- 
way, Portugal, Roumania, Russia, Servia, Spain, Sweden, 



THE EFFORT OF EUROPE 263 

and Switzerland, reserve to the Individual the right of 
assembly, that is, they place this very important means for 
the attainment of a consensus of opinion and a common 
purpose within the realm of Immunity from governmental 
interference. It is generally defined and always meant 
that such assembly to be within the bounds of the Im- 
munity must be unarmed, and must take place in a hall, 
building, or enclosed place, and that all meetings, on the 
other hand, in the open are subject to police permission 
and control. 

Since the object of such assembly is usually to air some 
grievance or bring some pressure upon Government, the 
right is usually connected with the further one of petition- 
ing the Government for a redress of grievances. All of 
the sixteen Constitutions, which contain the provision for 
the right of assembly also contain provisions for that of 
petition. Some of them, as that of Italy, recognize the 
right of petition to each and every adult person. All of 
these sixteen Constitutions, except only that of Italy, 
contain provisions reserving the right of association for 
all lawful purposes to the Individual against the power of 
Government. Italy has suffered so much throughout her 
whole history from secret associations of every kind, that 
it can excite no wonder that her Constitution omits this 
right from the realm of Individual Liberty. 

All sixteen of these Constitutions declare the home in- 
violable and immune against arbitrary invasion by the 
ofiScials of Government. Searches and seizures of a domi- 
ciliary nature can be made only according to law, i. e., 
legislative act', and the officer executing such law is for- 
bidden to do anything not authorized and commanded by 
the legislative act. 

The Constitutions of nine of these sixteen states, viz.: 



264 GOVERNMENT AND LIBERTY 

Belgium, Bulgaria, Greece, Luxemburg, Montenegro, the 
Netherlands, Portugal, Roumania, and Spain, contain pro- 
visions declaring the inviolabiUty of correspondence by 
mail or telegraph to be an Immunity of the Individual 
against governmental power. The governmental power 
here meant, be it always remembered, is what we in America 
term the Executive power of Goverimient. 

Finally, the Constitutions of two of these states, viz.: 
of Norway and Portugal, shield the Individual against the 
powers of Government to execute upon him any retroactive 
law. As we have already seen, the Individual is by all 
these sixteen Constitutions exempted from the operation 
of any ex-post-facto law, i. e., any retroactive criminal law. 
These two Constitutions which carry the Immunity so far 
as to shield the Individual against retroactive laws of both 
civil and criminal nature, while appearing thus to be ex- 
ceptions to the rule, stand upon a stronger ground of reason, 
and most of the modern states of Europe and America 
follow this principle as a constitutional custom. 

This sphere of Immunity of the Individual against the 
powers of Government as contained in the most modern 
European Constitutions is the product of centuries of 
thought and of struggle. It has become fairly well de- 
fined in the provisions of constitutional law and fairly well 
fixed in the consciousness of the Nations. In so far as 
the delimitation of this sphere and the statement of its 
contents are concerned, we may say that the modern 
European states have fairly solved our problem of the recon- 
ciliation of Government with Liberty. 

But the final factor in the calculation, the final element 
of the problem, is even more important, if possible, than 
either of the other two, for without satisfying it the solu- 
tion of the problem fails almost as completely as though 



THE EFFORT OF EUROPE 265 

one or both of the other two had never received any de- 
velopment. This final element or factor in the problem 
is the creation of such guarantees of this sphere of Indi- 
vidual Immunity against governmental power as will 
make it genuinely and easily effective. 

We may say, at the outset, that the only guarantee fur- 
nished by the Constitution of any European state for the 
Immunities of the Individual against governmental power 
consists in the power and disposition of the Legislature, 
the ordinary statute-making organ of the Government. 
The theory of European constitutional development in the 
seventeenth, eighteenth, and nineteenth centuries and down 
to the present moment has been that despotism and ar- 
bitrary rule inhere only in the Royal administration, and 
that the ordinary Legislature, representing the citizens or 
subjects of the Government, is the proper and sufiicient 
organ for the protection of the Immunities of the Indi- 
vidual against governmental power. The framers of the 
present European Constitutions do not seem to have sus- 
pected any danger of encroachment upon these Immuni- 
ties by the Legislature itself, or at least, if they did, do not 
seem to have discovered any escape from it. 

The first and most general means which they invented 
for realizing the protection of the Legislature over the 
Immunities of the Individual against the powers of the 
Government or, more exactly, as we Americans would say, 
against the Executive branch of the Government, were the 
constitutional requirements that no law binding the ordi- 
nary citizens or subjects could be passed without the con- 
sent, at least, of the Legislature, that the administration 
of the Government should be carried on through Ministers 
of the Crown or the Executive head, and that these Minis- 
ters should be individually criminally responsible for crimes 



266 GOVERNMENT AND LIBERTY 

and misdemeanors and infractions of the law in office. 
In other words, the usual and universal remedy against 
govermnental encroachment upon the realm of Individual 
Immunity in the European states is the power of impeach- 
ment of the Ministers and other officials by the Legislature 
or by a Court at the instigation of the Legislature. Let 
it be remembered that I use the term impeachment in 
this connection in the popular sense of trial and sentence 
instead of in the technical sense of American law, viz.: 
arraignment and prosecution. Taking the European states 
in alphabetical order, we find that the Constitution of Bel- 
gium provides for the trial of the Ministers and other high 
officials for crimes and misdemeanors in office by the Court 
of Cassation, the highest Court of Law, on accusation by 
the Chamber of Deputies; that the Constitution of Bulgaria 
provides for their trial for these offenses by a Court estab- 
lished by act of the Legislature, as the Legislature consists 
of a single House; that the Constitution of Denmark pro- 
vides for their trial by a Royal Court composed of an equal 
number of members of the highest regular Court of Law, 
and of the Upper House of the Legislature, on accusation 
by the Lower House of the Legislature; that the Consti- 
tution of the German Empire makes no provision what- 
ever for impeachment, but that the Constitution of Prussia 
which must be taken with that of the Empire in regard 
to the matter in discussion, as I have already explained, 
provides for the trial of the Ministers for violations of the 
Constitution, as well as for treason and bribery, by the 
Supreme Court of the state, on accusation by either 
Chamber of the Legislature; that the Constitution of the 
French Republic provides for the trial of the Ministers 
and of the President himself by the Senate on accusation 
by the Chamber of Deputies; that the Constitution of 



THE EFFORT OF EUROPE 267 

Greece provides for the trial of the Ministers for offenses 
in ofl&ce by a High Court, constituted for the purpose, 
consisting of the President of the regular Court of Cassa- 
tion and twelve members of the same drawn by lot by the 
President of the Legislative Chamber, on accusation by the 
Legislative Chamber, as Greece has a unicameral Legisla- 
ture; that the Constitution of Italy provides that the 
Ministers may be tried by the Supreme Court of the King- 
dom, on accusation by the Chamber of Deputies; that the 
Constitution of Luxemburg provides for trial of the Min- 
isters by a Court created by statute, on accusation by the 
Legislative Chamber, Luxemburg having only one Legisla- 
tive Chamber; that the Constitution of Montenegro pro- 
vides for the trial of the Ministers by a Court composed 
of the members of the Supreme Court of the Kingdom 
and the members of the Council of State, on accusation 
by the Legislative Chamber, as Montenegro has a uni- 
cameral Legislature; that the Constitution of Norway pro- 
vides that the Mini'Sters may be tried by a Court composed 
of the members of the Supreme Court of the Kingdom and 
of the Upper Chamber of the Legislature, on accusation 
by the Lower House of the Legislature; that the Consti- 
tution of Austro-Hungary provides for the trial of the 
members of the Common Ministry by a court formed by 
the delegations, i. e., the Legislative body of the Imperial 
Confederation, on accusation by the Delegations, and that 
of Austria proper provides for the trial of the Austrian 
Ministers by a Court created by act of the Austrian 
Legislature, on accusation by the Lower House of the 
Legislature; that the Constitution of Portugal follows that 
of the French Republic in this respect, as in most of its 
provisions; that the Constitution of Roumania provides 
for the trial of the Ministers by the Supreme Court of the 



268 GOVERNMENT AND LIBERTY 

Kingdom, on accusation by either Chamber of the Legis- 
lature; that the Constitution of Russia provides for the 
trial of the Ministers for crimes and misdemeanors in ofl&ce 
by the regular Judicial tribunals in the ordinary manner 
and procedure obtaining in those tribunals; that the Con- 
stitution of Servia provides for the trial of the Ministers, 
charged by the Legislative Chamber with the violation of 
the constitutional Immunities of the Individual, by the 
Council of State, a body chosen partly by the King and 
partly by the Legislative body; that the Constitution of 
Sweden provides for the trial of the Ministers for crimes 
and misdemeanors in office by the Senate, on accusation 
by the lower Chamber of the Legislature; and that the 
Constitution of Spain provides for the trial of the Minis- 
ters by the Senate, on accusation by the Chamber of Depu- 
ties; while, finally, the Constitution of Switzerland author- 
izes the regular Legislative body to provide by statute for 
the trial of the Ministers on charges of malfeasance in 
office. 

Of the British and Hungarian practises I have not 
spoken because neither has a written code of constitu- 
tional law and each has long ago laid aside the process of 
impeachment of the individual officer as obsolete under 
the real regime of Parliamentary Government. By the 
term Parliamentary Government is intended that form of 
relation between the Executive and the Legislature whereby 
the Ministry is solidly responsible for its official acts of 
every kind to the Lower House of the Legislature and in 
case of disagreement between itself and this House must 
either resign or secure a dissolution of the Chamber, fol- 
lowed by an appeal to the voters to elect members to the 
new Chamber on the issue in dispute, either wholly or in 
connection at least with questions which do not relegate 



THE EFFORT OF EUROPE 269 

it to a minor place, and must then yield to the will of the 
new Chamber or resign. There is but one complete ex- 
ample of this system among the European states or among 
the states of the world, and that is Great Britain. France, 
Portugal, Spain, Italy, Greece, and Norway have made a 
very considerable development in this direction, while 
Switzerland deals with its Executive simply as an agent 
of the Legislature, with no will or pohcy of its own and 
no joint responsibiUty for any pohtical poUcy, a seven- 
headed Executive Directory with a presiding ofi&cer, all 
chosen by the Legislature by formal ballot and for a definite 
period and individually retained in office for so long as the 
Legislature may choose. In all of these cases the Legis- 
lature can perfectly well prevent the Executive from vio- 
lating or encroaching upon the domain of Individual Im- 
munity against governmental power without having re- 
course to the process of impeachment of the Ministers or 
other officials. A vote indicating lack of confidence is all 
that is necessary to bring on a Ministerial crisis, which 
must always finally result in the submission of the Minis- 
try to the will of the Legislature, the existing or the newly 
chosen one. I cannot regard this process, however, as so 
favorable to the preservation of the constitutional Im- 
munity of the Individual as the older process of impeach- 
ment, because the bodies which usually institute and try 
an impeachment are not only far more intelHgent than the 
average voter, but have also the advantage of dehberation, 
discussion, and comparison of views. They are able, thus, 
to arrive at a far more accurate interpretation of the con- 
stitutional domain of Individual Liberty and consequently 
to act with due consideration in restraining the exaggera- 
tions of governmental power. The voters are far more 
likely to veer toward despotism at one moment and toward 



270 GOVERNMENT AND LIBERTY 

anarchy at another than to advance steadily and intelli- 
gently along the true line of division between the spheres 
of Government and of Liberty. The principle and process 
of impeachment as contained in very nearly all the Euro- 
pean Constitutions may, therefore, be said to be a tolera- 
ble solution of the problem of protecting the Constitutional 
domain of Individual Liberty against the encroachments 
of the Executive branch of Government, a much better 
solution than that offered by the practises of genuine 
Parliamentary Government. In this latter system of 
Government the Executive and the Legislature are too 
closely bound together. A greater independence and even 
a certain jealousy must obtain between them before the 
Legislature can be relied on to protect Individual Liberty 
against the tendency of the Executive to exaggerate its 
powers. 

The more serious question, however, in these systems of 
Government is the protection of the Liberty of the Indi- 
vidual against the encroachments of the Legislature itself. 
When, through the Revolutions of the seventeenth and 
eighteenth centuries the Legislatures were first established, 
they were intended more as a check upon Government in 
behalf of Liberty than as an active part of Government. 
Only gradually did they become an equal participant in 
Government, and then the dominant factor. So grad- 
ually and imperceptibly did this come about that it has 
not been generally remarked that they themselves were 
becoming more and more affected by the exercise of gov- 
ernmental power, and less and less reliable as a defense of 
Liberty. To-day every political scientist knows that the 
Legislature is a more formidable foe of Individual Liberty 
than the Executive. 

Let us at this point, however, go back to the period of 



THE EFFORT OF EUROPE 271 

the creation of the Legislatures and examine whether in 
the internal structure of the original Legislatures any safe- 
guards were provided against Legislative despotism, and 
then whether such original safeguards have been in the 
course of time destroyed or weakened. 

These safeguards are to be sought in the cameral arrange- 
ments and relations and in the character of the electorate. 
We may state as general propositions that the original 
Legislatures were bicameral ; that the Chambers had equal 
powers, and that the electorates were limited by property 
quahfications. These were all principles which tended to 
make the Legislatures considerate and conservative of 
Individual Liberty, even against themselves. The bi- 
cameral Legislatures, with parity of powers in each Cham- 
ber, were far less likely to encroach upon the sphere of In- 
dividual Liberty than a unicameral Legislature, with its 
more concentrated power and its more speedy action; and 
the electorate of property-holders exercised a strong, con- 
servative influence over its legislative representatives. 

Let us now examine the present Constitutions of the 
European states to find whether any changes have taken 
place in the essential characteristics of the legislative 
bodies which would affect their power and disposition in 
the protection of the Civil Liberty of the Individual against 
their own arbitrary action. 

In the first place, the bicameral system of the Legisla- 
ture is still general in Europe except in the Balkan states, 
Bulgaria, Servia, and Montenegro, in Greece, and in Lux- 
emburg, and Greece has, in addition to her single Chamber, 
a Council of State composed of members appointed for a 
term of ten years on nomination by the Ministry, whose 
function it is to give expert opinion upon every proposed 
law, which opinion touches not only the policy of the pro- 



272 GOVERNMENT AND LIBERTY 

posed enactment, but also its constitutionality. The Cham- 
ber may disregard this opinion, has always the power to 
do so, but it certainly exercises, in most cases, a certain 
moral restraint upon arbitrary action. Servia has also a 
Council of State, some of whose members are appointed 
by the King, and some elected by the Legislature, but its 
functions relate only to a certain control over executive 
action and it can exercise no restraint of any kind over 
legislative action. In her Constitution of 1901 Servia pro- 
vided herself with a bicameral Legislature, but both the 
King and the popular Chamber found the Senate an effec- 
tive clog upon hasty movements and in the Constitution 
of 1903, the present instrument, it was dispensed with. 
Bulgaria, Montenegro, and Luxemburg make no pretense 
of a limitation upon the action of a single Chamber. 

We may say, therefore, the bicameral Legislature is still 
the general principle of legislative structure in the European 
states and that the independent action of each Chamber 
constitutes a certain restraint upon rash or hasty legis- 
lative action and a certain protection oi the Liberty of the 
Individual against unconstitutional legislative encroach- 
ment. 

But the effectiveness of this restraint depends in very 
large degree upon the parity of powers in the two Chambers. 
Has this been preserved during the constitutional develop- 
ment of the last century? Let us see. Of course, those 
states having unicameral Legislatures must be left out of 
consideration upon this point, viz.: Bulgaria, Servia, 
Montenegro, Greece, and Luxemburg. Of the other six- 
teen only five still uphold the parity of power, both in the 
initiation and veto of all projects of legislation, in both 
Houses of the Legislature. These are Austria, Germany, 
Russia, Sweden, and Switzerland. Were it not for the fact 



THE EFFORT OF EUROPE 273 

that Switzerland, the most radically democratic system 
among the states of the world, is found among these five, 
it would probably be claimed that parity of power in the 
Legislative Chambers is associated with strong executive 
power and is no guarantee of Individual Liberty. As it 
is, however, such a claim would be weak and worthless. 
We must look elsewhere for the reason, and it is not diffi- 
cult to find. These are the states in which the men of in- 
telligence, character, thrift, and wealth still occupy the 
stations in the poHtical society which their services and 
contributions to the pubHc warrant. These are the states 
in which it is generally understood that making intelli- 
gence, character, and thrift subject to ignorance, vice, and 
sloth is destructive to civihzation and genuine progress. 
In these states the higher classes have retained their vigor 
and courage and do not allow themselves to be over- 
borne by numbers merely. The spiritual armor which 
they wear gives them, when they employ it courageously, 
the like mastery over their fellows that the helmet and 
breastplate of steel gave their predecessors. It is only 
when they seek to escape the duty and service to the state 
which their quaHties and possessions require that they 
become timid and servile. Until this occurs the equahty 
in power of the bodies which represent them with those 
which represent a more numerous constituency is not seri- 
ously questioned. The history of the poKtical power of 
the NobiUty in the Latin states and in Great Britain will 
fully demonstrate the force of this view. 

In the other eleven states the one inequahty common 
to them all is that the budget must be discussed and voted 
first by the Lower House of the Legislature. The usual 
course is that the Ministry make up and present the budget 
and that the House accepts or rejects in toto or accepts 



274 GOVERNMENT AND LIBERTY 

with modification. By the budget is meant all financial 
measures, the levying of taxes, the making of appropriations, 
and the contracting of debts. This signifies that the bulk 
of the taxes rests upon the constituencies of the Lower 
House and that they who pay most should have the first 
word as to the levy and appropriations, a rather impregna- 
ble principle. 

From this single inequality common to the Constitutions 
of the eleven states a number of them have made advances, 
some of a slight and others of a very serious character. 
The Constitution of Belgium provides that bills fixing the 
strength of the Army must be first considered and voted 
in the Chamber of Deputies. Inasmuch as the Chamber 
of Deputies represents those who must render the largest 
part of the military service, this procedure certainly seems 
sound from this point of view. The Constitutions of the 
Netherlands and of Norway and the practise in the Hun- 
garian Legislature vest the initiation of all bills or projects 
of law in the Lower House. Inasmuch as the members of 
both Houses of the Norwegian Legislature are chosen by 
the same constituencies, it seems simply fanciful to confine 
the initiation of the laws to either body exclusively, and 
among such conservative nations as the Dutch and the 
Hungarian it is difficult to find the reason for any excep- 
tion to, or limitations of, the parity of power in the two 
Houses of the Legislature. It is not necessary to the pur- 
poses of this study that we should seek the reason for the 
constitutional facts. They are cited here only for the pur- 
pose of showing the drift toward unicameralism in the 
states of the present day. The Constitutions of Norway 
and Roumania and the practise in the British Parliament 
place the entire control of the budget as to its initiation 
and passage in the Lower House. In Norway this feature 



THE EFFORT OF EUROPE 275 

of the constitutional law is of little consequence since the 
members of both Houses are elected as members of one 
general assembly and when they are all thus assembled 
in a single body, they divide by lot into two bodies, one- 
fourth forming one House and three-fourths the other, and 
when the two differ in opinion they reunite as one body 
in which the House having the larger number of members, 
fancifully called the Lower House, or popular House, gen- 
erally carries the day; but in the English and Roumanian 
practise it signifies that a large body of men, paying a 
large part of the taxes are literally subjected to the will of 
a larger body, which no longer represents exclusively the 
taxpayers, if it ever did. Finally, the Norwegian Consti- 
tution and the recently adopted English practise provide 
for the complete supremacy of the Lower House in all 
legislation. As has been explained, this is not of much 
consequence in the Norwegian system, since this system 
is virtually unicameral under a veil of bicameralism, which 
is decidedly transparent. In the English system, on the 
other hand, it marks a distinct advance in the subjection 
of the aristocracy to the democracy, and the tendency of 
democracy to unicameralism in the Legislature. 

Let us examine, thirdly, the provisions of the Constitu- 
tions of these states relative to the qualifications for hold- 
ing the suffrage to see whether there may be in that any 
guarantee of the Immunity of the Individual against the 
powers of Government. As I have said, constitutional 
Government in Europe began with limited suffrage, but 
the tendency has been constantly toward broadening the 
same until at present the Constitutions of thirteen of the 
twenty-one states under consideration, viz.: Austria, Bul- 
garia, Denmark,^ France, Germany, Greece, Italy, Monte- 
negro, Norway, Portugal, Spain, Sweden, and Switzerland 

' See note on p. 287. 



276 GOVERNMENT AND LIBERTY 

provide universal male suffrage as the principle of the elec- 
torate of the Lower House of their respective Legislatures. 
They do not all agree in regard to the minimum voting age. 
In fact there is considerable diversity and it goes far enough 
to affect in some degree the character of the electorate. 
Switzerland goes to the one extreme of requiring the at- 
tainment of only the twentieth year and Denmark to the 
other of requiring that of the thirtieth.^ Between the two 
extremes are Bulgaria, France, Greece, Montenegro, and 
Portugal, which require the attainment of the twenty-first 
year; Austria and Sweden, which require the attainment 
of the twenty-fourth year; Germany, Norway, and Spain, 
which require the attainment of the twenty-fifth year; 
and Italy, which requires the attainment of the thirtieth 
year generally, but admits all males over twenty-one 
years of age, who can read and write or who have dis- 
charged their duty of military service. The other eight 
states require, in addition to the qualifications of sex, age, 
and citizenship, the possession of a small property^ or in- 
terest therein or the payment of a small tax, so sHght 
in amount as to debar from the exercise of the suffrage no 
one of any real worth. The divergencies as to the age 
minimum obtain, however, also among these, Hungary re- 
quiring the attainment of only the twentieth year. Great 
Britain and Servia of the twenty-first, Luxemburg, Nether- 
lands, Roumania, and Russia of the twenty-fifth, while 
Belgium, though according one vote to all male citizens 
twenty-five years of age, seeks to avoid the radical result 
of it by giving one supplemental vote to any citizen over 
twenty-five years of age, who possesses real estate to the 
value of four hundred dollars or has an annual income from 
real estate or from Belgian state securities to the amount of 
twenty dollars, also to any citizen over thirty-five years of 

^ See note on p. 287. 



THE EFFORT OF EUROPE 277 

age having children and paying an annual house tax of 
five franks, and two supplemental votes to any citizen 
twenty-five years of age, who bears a University degree 
or has filled an office or practised a profession requiring 
the knowledge impHed by such a degree; and, finally, 
Norway grants the full suffrage to women who pay inde- 
pendently, or on property held jointly by them with a man, 
an annual income tax on an income amounting to some- 
thing over one hundred dollars in towns and something 
over seventy-five dollars in the country districts. 

All of the European states having bicameral Legislatures, 
except Norway, seek in some way or other to make the 
Upper Chamber a more conservative body than the Lower. 
As I have already said, Norway elects the members of both 
Houses as a single body and then separates them by lot 
upon their assembly. The means employed by these states 
for producing this more conservative Upper House are 
partly relative to tenure, partly to term, and partly to the 
quaHfications of the members of this body. Scarcely in 
any two of these Upper Houses is the tenure of their mem- 
bers the same. In fact there are few of them in which 
the tenure of the members of the particular House is uni- 
form. In the British House of Lords, the Austrian House 
of Lords, the Hungarian House of Lords, and in the Spanish 
Senate, the greatest variety of tenure is to be found. In 
the British House of Lords the number of members holding 
by hereditary right is larger than in any of the other 
Upper Houses of Europe. In a House of six hundred and 
tliirty-six members over five hundred and fifty hold by 
hereditary right, if we class the immediate appointees of 
the King among them, as we must, since the King cannot 
appoint a Lord without the hereditary tenure attaching 
thereafter, except the four Law Lords. These latter hold 



278 GOVERNMENT AND LIBERTY 

for the life of the appointee in every case. The twenty- 
six Ecclesiastics hold also for Ufe only, as do the twenty- 
eight Lords elected by the peerage of Ireland, while the 
sixteen Lords elected by the peerage of Scotland hold only 
for the duration of the Parliament to which they are 
elected. Hungary follows next in the order of the strength 
of the hereditary element, there being two hundred and 
twenty-nine hereditary Lords in the House of Lords or 
Magnates, including the Archdukes of the Royal House 
two hundred and forty-four, some sixty-seven ex-ofl&cio 
members, the High Ecclesiastics and Judges, some sixty 
life Lords appointed by the Crown, and three representa- 
tives chosen by the Legislature of Croatia and the Gov- 
ernor of Fiume. Then follows Austria in the same order, 
with a House of Lords consisting of some eighty-one mem- 
bers holding by the hereditary tenure, including the fifteen 
princes of the Royal House of ninety-six members, of seven- 
teen High Ecclesiastics ex-officio, and of some one hundred 
and sixty members appointed by the Crown for life. And 
then Spain with a Senate consisting of about fifty Grandees, 
who hold by hereditary right, some thirty High Ecclesi- 
astics and High Secular Officials, about one hundred mem- 
bers appointed by the King for life and one hundred and 
eighty members elected by the Provincial and Municipal 
Governments, the Church, the Universities, the Academies 
of Letters and Sciences, and the highest taxpayers, with 
terms of ten years. The next class of states, from this point 
of view, comprehends Russia, the German Empire, and 
Denmark, in all of which the members of the Upper House 
of their respective national Legislatures are partly ap- 
pointed and partly elected, the hereditary element having 
become entirely eliminated. In Russia the members of 
the Upper House are, one-half appointed by the Emperor 



THE EFFORT OF EUROPE 279 

for life and one-half elected by the Provincial Assemblies, 
the Church, the Universities, the Academies of Science, the 
commercial and industrial exchanges, and the Nobles of 
Russia and Poland, and hold for nine years. All members 
of this Chamber must be at least forty years of age and 
all of them must have University degrees. The Bundes- 
rath or Federal Council of the German Empire is composed 
of members appointed by the Princely Heads of the 
twenty-two princely States of the Union and by the Gov- 
ernor of the Imperial Territory of Alsace-Lorraine and 
elected by the Senates of the three City States of the 
Union, Bremen, Hamburg, and Liibeck, all with indefinite 
terms. And lastly the Danish Senate is composed of twelve 
members appointed by the ELingi and fifty-four members 
elected by the voters, the appointees of the King holding 
for life and the members elected by the voters holding for 
eight years. The third class of states, from the point of 
view of the construction of their Senates, comprehends 
those in which all the members are appointed by the Crown. 
These are Italy and Greece, if we may call the Greek 
Council of State an Upper Chamber. In both of these the 
members are appointed by the King for life terms. The 
Italian Constitution requires that every Senator must be 
at least forty years of age and selected from persons hav- 
ing certain high qualifications prescribed expressly in the 
organic law. The Princes of the Royal House of full age 
have also seat and voice in the Senate. The fourth and 
final class of European States regarded from this point of 
view comprehends those which provide in their respective 
Constitutions a Senate composed entirely of elected mem- 
bers, viz.: Belgium, France, Norway, the Netherlands, 
Portugal, Roumania, Sweden, and Switzerland. In the 
majority of these, viz. : France, the Netherlands, Portugal, 

'See note on p. 287. 



28o GOVERNMENT AND LIBERTY 

Sweden, and Switzerland, local Assemblies elect the Sen- 
ators; in the Netherlands and Sweden the ordinary Provin- 
cial Assemblies or Councils; in Portugal the ordinary 
Municipal Councils; in France Senatorial Electoral Col- 
leges composed of the Councillors of the Department, the 
Councillors of the Arrondissements within the Depart- 
ment, representatives from each Municipal Council in 
the Department and the members of the national Cham- 
ber of Deputies from the Department; and finally in 
Switzerland the Senators are elected either by the Legis- 
latures of the several Cantons or by the voters in any 
Canton as the Cantonal authorities may determine. In 
Belgium, on the other hand, the Senators are chosen partly 
by the Provincial Councils and in larger part by the voters 
who are over thirty years of age. In Roumania they are 
all chosen by the voters who belong to the property class, 
having an annual income from realty of over one hundred 
and fifty dollars. Finally, in Norway the Senators are 
chosen by the voters who choose the members of the Lower 
House. 

Naturally, where the Senators are elected the Consti- 
tution generally fixes the qualifications of eligibility. The 
Belgian Constitution requires that the Senator must in all 
cases be at least forty years of age and, where elected by 
the voters, he must also be a high taxpayer or large real- 
estate owner. The tax qualification is fixed at a minimum 
of one thousand two hundred francs direct, and the owner- 
ship qualification at a property with a minimum annual 
income of twelve thousand francs. The French Consti- 
tution requires that all the Senators must be at least forty 
years of age. The Norwegian instrument requires that 
the members of both Houses must have attained the thir- 
tieth year of age. The Constitution of the Kingdom of 



THE EFFORT OF EUROPE 281 

the Netherlands provides that all Senators must be at least 
thirty years of age and belong to the class of highest taxed. 
The Portugese law follows the French. The Roumanian 
Constitution requires that all Senators must have attained 
the fortieth year of age and be possessed of an annual in- 
come of some two thousand dollars. The Swedish instru- 
ment provides that to be eHgible to the Senatorial mandate 
the elected must be at least thirty-five years of age and 
must have possessed for three years before his election 
real property to the assessed value of some thirteen thou- 
sand five hundred dollars or an annual income of over 
eight hundred dollars. Finally, the Swiss Constitution 
leaves the question of Senatorial eUgibiUty to the several 
Cantons. 

There is, lastly, one more provision to be found in al- 
most all of these Constitutions, which was doubtless in- 
tended to be a genuine conservative principle, the provi- 
sion declaring that Legislative members are not subject 
to instructions by their constituents. Each member is 
declared to be the representative of the totality of the 
population, not only in his particular district but in the 
entire country, not only of those who voted for him but 
also of those who voted against him, and of the respective 
parties to which they all belong, and finally of the unen- 
franchised and disenfranchised, as well as of the enfran- 
chised. He is, therefore, expected to speak and vote ac- 
cording to his own judgment and in the interests of the 
entire country and of all of its inhabitants, instead of in 
the interests of his particular constituency. 

Now, do any or all of these provisions concerning the 
structure of the modern European Legislatures contain 
any sufficient guarantee of the constitutional Immunity 
of the Individual against the encroachments of the Legis- 



282 GOVERNMENT AND LIBERTY 

lature itself upon this sphere? Let us give this question 
a little reflection. 

The bicameral system of the Legislature is a certain 
check upon all legislaticfn, in the sense of course that con- 
sideration of a subject by two bodies must proceed more 
slowly than where it may be determined by either of them. 
This does not mean that the Upper House of such a 
Legislature is always conservative and the Lower always 
radical. It is possible that occasionally, at least, the op- 
posite situation should exist. It simply means that gen- 
uine conservative action, which is also genuine progres- 
sive action, is more likely to be attained through double 
deliberation and procedure than through single. If such 
be the case, the Individual may expect somewhat more in- 
telligent consideration than from a Legislature having 
only a single Chamber. He has at least a double chance to 
convince the Legislature that it is treading upon a do- 
main secured to him by constitutional declaration. He 
has a double chance to appeal to its benevolence. This is 
true, of course, in full measure, only when the two Houses 
of the Legislature have equal power. When certain sub- 
jects, especially when vital subjects, such as the preparing 
and enactment of the budget, are excepted from the power 
of one House entirely or partly, then the Individual is 
deprived, wholly or partly, of the advantage which the 
bicameral system affords his constitutional Immunity 
against the power of the Legislature. In fact, in respect 
to such subjects the bicameral system is displaced, in 
greater or less degree, by the unicameral system. And 
lastly, it is at least highly probable that an electorate of 
the legislative members and a legislative membership with 
qualifications somewhat farther-reaching than sex, age, 
and citizenship, in both cases or in one only, would af- 



THE EFFORT OF EUROPE 283 

ford a more ample protection of the constitutional Immu- 
nity of the Individual against the power of the Legisla- 
ture than what has been termed manhood qualifications 
and manhood eligibility. It would depend, of course, upon 
what those further qualifications might be. They should 
be intelligence, impartial judgment, learning, broadness of 
view, and sound moral character and independence. Such 
qualifications in the electorate and in the membership of 
the Legislature would certainly be defensive of the realm 
of Liberty, on the one side, and of the domain of Govern- 
ment, on the other. Such an electorate and the legisla- 
tive members chosen by it would understand with a fair 
degree of clearness the equal necessity of both Government 
and Liberty in the solution of the great problems of civil- 
ization and would be disposed to lift these fundamental 
conceptions of Political Science and Constitutional Law 
above all mere considerations of party politics or personal 
advancement. 

Now, finally, what has been the course of development 
upon these subjects from the beginning of the era of con- 
stitutional Government down to the present moment? 
Taking first the electorate. The earlier instruments pro- 
vided for an electorate of moderate size and of such quali- 
fications as gave the suffrage generally to the men of 
weight and responsibility and to such only. Very soon, 
however, discontent among the unenfranchised and the 
search by the politicians for a new following set the course 
for the extension of the suffrage. Within certain bounds 
such extension of the suffrage was in most cases natural 
and even necessary, but it has not been kept within these 
bounds. An unnatural and an extreme extension of the 
suffrage has occurred in most of the European states, 
chiefly owing to the intrigues and ambitions of the poli- 



284 GOVERNMENT AND LIBERTY 

ticians either to increase an old following or to create a 
new one, until now the legislative constituencies are gen- 
erally dominated by those who have the lesser stake in 
the welfare of the state, and who have manifested every- 
where the disposition to make use of the Legislature for 
the curtailment of the Immunity of the Individual against 
governmental power, under the claim that such Immunity 
enables tlie intelligent and the capable to get the advan- 
tage in the acquisition of wealth over the ignorant and 
the incapable, or, as some of their most fervent spokesmen 
would express it, "enables the strong and artful to gain 
the advantage over the weak and conscientious." Of 
course, there is a fair advantage which the intelUgent and 
capable naturally have over the ignorant and incapable, 
and this advantage cannot be taken from them by Gov- 
ernment without injury to the public welfare; and there 
may be an unfair advantage taken by the intelligent and 
capable over the ignorant and incapable, and this unfair 
advantage generally consists also in the use by them of 
the Government for their enrichment. But the present 
electorate majority in most of the European states does 
not rest upon these distinctions, at least not clearly. It 
seems to be assumed that the intelligent and capable are 
always crafty and conscienceless and that there is no 
natural advantage which gives them more of the goods 
of this world than their less intelligent and less capable 
fellow countrymen possess. The electorate majority in 
most of the European states of to-day seems to have 
little conception of the true province of Individual Lib- 
erty in the work of civilization, and to regard Govern- 
ment as the sole instrument which the state should em- 
ploy in the accomplishment of its purposes. It manifests 
the disposition to crush the higher intelligence and the 



THE EFFORT OF EUROPE 285 

higher capacity by robbing them through legislation of 
their natural rewards. It demands the forcible equality of 
enjoyment no matter how great may have been the dif- 
ferences of achievement. It is true that the electorate of 
the Upper Houses and the quahfications for membership 
therein appear to stand in the way of such a consumma- 
tion. But it must be remembered that five of the twenty- 
one states whose Constitutions we are considering have 
done away with the Upper House altogether, and that 
eleven of the other sixteen have denied to the Upper 
House parity of powers in legislation with the Lower, some 
of them upon one or more subjects and some of them upon 
all subjects, so that whatever defense of Individual Lib- 
erty there might have originally been in the existence and 
character of the Upper House is now rapidly vanishing. 
The present course of development is quite clearly toward 
the unicameral system in the European Legislatures, how- 
ever scrupulously the form of the bicameral system may 
be preserved — the unicameral system, too, whose members 
shall be chosen by an electorate in which all natural dis- 
tinctions shall be ignored, in which the mere biped shall 
equal the sage, and who shall themselves be required to 
be no more. Such a Legislature will surely be no de- 
fense for Individual Liberty against its own encroach- 
ments. Such a Legislature will always seek to substitute 
its own unHmited rule for the constitutional system of 
limited Government and defined and guaranteed Civil 
Liberty. At its very best, a Legislature is no reliable de- 
fender of Individual Immunity against its own encroach- 
ments. At its very best, it always manifests a tendency, 
at least, to encroach upon Individual Immunity. By its 
very best I mean a Legislature whose members and whose 
electorate represent a society which has not yet become 



286 GOVERNMENT AND LIBERTY 

divided by divergent economical interests into classes. 
Such a society is, in its most advanced form, agricultural, 
practically exclusively so. In fact, the agricultural so- 
ciety is the only exclusive form which can in any con- 
siderable measure satisfy the wants of society. A Legis- 
lature consisting of small farmers elected by small farmers 
is the most favorable Legislature to the preservation of 
the freedom of the Individual in a certain sphere against 
Governmental power, whether exercised by an Executive 
or by itself, and history shows that even such a Legisla- 
ture does not always do it. Just so soon, however, as the 
society becomes divided into classes by the development 
of divergent economical interests, then the struggle begins 
for the capture of the powers of Government, to be exer- 
cised in the furtherance of the interests of a class. At 
first the more intelligent and capable generally win the 
day and encroach, in some degree, on the Immunities of 
the Individual, but finally the less intelligent and capable, 
which are always in numerical majority, learn the lesson, 
and seize the Government and then through legislation 
reduce all Individual Immunity against governmental 
power to a minimum, to say the least. In a single sen- 
tence, the unicameral Legislature with the existing elec- 
torate moves along towards the socialistic state and the 
socialistic state does not recognize any sphere of Indi- 
vidual Immunity defined and guaranteed by the Constitu- 
tion against the powers of Government. I cannot, therefore, 
consider the present Constitutions of the European states 
as offering any satisfactory solution of the great problem 
of the reconciliation of Government with Liberty. Liberty 
is sacrificed to Government in them all. And the chief 
reason why the Legislatures have not to this time realized 
their absolute powers in them all is, in my opinion, the 



THE EFFORT OF EUROPE 287 

restraining influence, in the Teutonic states, of a rational 
philosophy of the state and of Government and in the 
Latin and Slavic states of the Roman and Oriental Chris- 
tian Churches. There is some influence, in this respect, 
of religion and Church in the Teutonic states and some 
influence of the rule of reason in the Latin and Slavic 
states. But the chief reason for the actual enjoyment of 
a certain sphere of Individual Immunity against the con- 
stitutional absoluteness of the Legislature is, I believe, as 
above stated. But all this is no solution of the great prob- 
lem. It is Liberty by the benevolence of Government 
and not by constitutional right. 



NOTE 

Since these pages have been put into type Denmark, in its 
revised Constitution of June 5, 1915, has extended the parlia- 
mentary suffrage to women, has reduced the age qualification 
for voting from thirty to twenty-five, and has abolished the 
appointed element in the Senate, making all of the members 
elected by the voters. 



BOOK III 

THE EFFORT OF AMERICA 

CHAPTER I 

THE UNITED STATES OF NORTH AMERICA 

Let us now turn to the Americas, the so-called coun- 
tries of political promise, and see what advance they may 
have made in the solution of our problem. Geograph- 
ically the Americas are divided into North, Central, and 
South America and the West Indian Archipelago; and 
within the same there exist twenty-one sovereign com- 
munities — states; in South America ten, viz.: Argentina, 
Bolivia, Brazil, Chili, Colombia, Ecuador, Paraguay, Peru, 
Uruguay, and Venezuela; in Central America six, viz.: 
Costa Rica, Guatemala, Honduras, Nicaragua, Panama, 
and Salvador; in the West Indian Archipelago three, viz.: 
Cuba, Santo Domingo, and Hayti; and in North America, 
two, viz.: Mexico and the United States. 

Of all of these the United States of North America has 
taken the lead in constitutional development and has been 
for all the rest in greater or less degree the model. We 
will, therefore, turn our attention first to the great North 
American Union and also treat of it lastly and in conclu- 
sion, since the solution which it had given to the problem 
of the reconciliation between Government and Liberty 
has, in the last three years, been called in question again 
and a modification of it seems to be in danger, at least, 
of realization. 



THE EFFORT OF AMERICA 289 

As has been frequently indicated in the course of this 
inquiry, the three fundamental factors in the solution of 
our problem are: first, the organization of the sovereign 
power, the state, back of and independent of the Gov- 
ernment; second, the deUneation by the sovereign of the 
realm of Individual Immunity against governmental power; 
and third, the construction by the sovereign of the organs 
and the procedure for protecting this realm of Individual 
Immunity against the encroachments of Government. 

There is nothing more difi&cult in political history and 
political science than to trace the original organization of 
a sovereign power, and state correctly its continuing or- 
ganization and operation. Happily, this is a much easier 
task in the history of the American states than in that 
of the European or the Asiatic. The entire process stands 
out with much greater clearness in the full light of modern 
times. 

The original thirteen Colonies, the fusion of whose in- 
habitants formed the American nation, were all severally 
subject to the sovereignty of the British Crown. This 
position of the British Crown in relation to them must 
be carefully distinguished from the position of the Crown 
as participant, through its own appointed agents, in the 
Government of most of them. As sovereign power the 
Crown framed and conferred the Charters and Patents 
through which it granted the territory, created the Gov- 
ernment, vested the Government with its powers, defined 
the Liberties of the Individual, and reserved the final pro- 
tection of the same to the Royal Courts or the Privy 
Council in England. As sovereign power the Crown, fur- 
thermore, amended and revised the Charters and Patents, 
and sometimes vacated them entirely. The grantees re- 
garded the Charters and Patents as contracts between 



290 GOVERNMENT AND LIBERTY 

^ themselves and the Crown and resisted, in increasing mea- 
sure, the claim on the part of the Crown of the right to 
modify or withdraw them, until at last the attempt by the 
Crown to change the Massachusetts instrument precipi- 
tated the Revolution. By precipitated I do not mean 
caused the Revolution, but only occasioned it. The 
cause of the Revolution was, as the great French statesmen 
Turgot and Choiseul said years before it came, the forma- 
' tion of the American nation. This development had been 
consciously progressing for ten years before 1775. Ac- 
cording to the principles of British pubUc law the Colonies 
of North America were connected with each other only 
through the Crown, the union was what is known in po- 
litical science as a personal union. But here were a num- 
ber of communities scattered for a thousand miles along 
the Atlantic, on the east side of the Alleghany mountain 
range, consisting mainly of people of English descent, 
speaking the English language, professing the religion of 
Protestant Christianity, living under the customs and 
regulations of the English common law, and separated 
from the motherland by three thousand miles of ocean, 
which, with the then inadequate means of navigation, 
made intercourse difficult, slow, and very irregular. In 
the hundred years between 1665 and 1765 the settlements, 
separated originally from each other by broad belts of 
forest, in which the savage and wild beast roamed, 
increased in population and extended the settled areas 
until they more nearly touched each other, which natur- 
ally produced much more active and regular trade and 
intercourse between the inhabitants' of the several Col- 
onies. This more active trade and intercourse produced 
in turn a more and more constant and regular exchange 
of opinion regarding all public questions, especially re- 



THE EFFORT OF AMERICA 291 

garding the relation of the several Colonies to the mother- 
land, and when in 1765 the British Parhament made a dis- 
tinct effort to assert its sovereignty over the Colonies, 
putting itself in the place which the Crown had in the 
public opinion as well as in the public law to that time 
occupied, the opportunity offered itself for a well-defined 
general policy of resistance. From that moment forward 
the formation of a party of resistance, not simply to par- 
ticular acts of governmental arbitrariness, but to the sov- 
ereignty of the British Parhament, began to manifest 
itself. What were called Committees of Correspondence 
appeared now in every Colony. These Committees were 
the nuclei of the Revolutionary party in each Colony. 
They were the local organization of the National patriotic 
party. By intercourse through these Committees a con- 
sensus of opinion was approximately reached, which fur- 
nished a basis for united popular action. 

The Colonial Governments had nothing to do with this 
movement. They were British institutions, and in their 
eyes this movement for the overthrow of the sovereignty 
of the motherland was nothing short of treason. It was 
an extra-legal popular movement. It was a new nation 
forming itself in the womb of history and preparing to 
emerge into independent life. By 1774 the time had come 
for this new National party to give itself a National or- 
ganization. The Port Bill and Regulating Act of April, 
1774, enacted by the British Parliament against the Col- 
ony of Massachusetts Bay, precipitated this result. In 
the course of the following month, the Committee of Cor- 
respondence of the Sons of Liberty, the name of the Na- 
tional patriotic party in the City and Colony of New 
York, sent out a call to all associations of a similar nature 
throughout the thirteen Colonies for a general Congress or 



292 GOVERNMENT AND LIBERTY 

rather Convention. The term Congress has been too much 
connected with Government to designate correctly the 
body which was thus brought together. This call was 
acted upon by the inhabitants in the different localities, 
irregularly of course, and as the custom of each prompted, 
and on the 5th of the following September some fifty men 
met in the Carpenters' Hall, in Philadelphia, and formed 
the first National Convention known to American history. 
They hardly seemed to know themselves whom or what 
they represented, what were their powers and functions, 
or what was their purpose. Patrick Henry seems to have 
been the one, if not the only one, who had clear concep- 
tions on these fundamental points, and he subsequently 
became confused and even backsliding in regard to them. 
In the inspiration of the moment, he came very near to 
telling the body what it was. He exclaimed: ''British op- 
pression has effaced the boundaries of the several Col- 
onies; the distinctions between Virginians, Pennsylva- 
nians, New Yorkers, and New Englanders are no more. I 
am not a Virginian. I am an American." 

The name given to this body in American history is 
the First Continental Congress, but on the day of assem- 
bly and organization it was nothing more nor other than 
the National Convention of the patriotic party of America. 
What it would become depended upon what it should 
later do. It presented its theory of the British Colonial 
system of North America. It was that the Crown was 
the sovereign in the system and that the Crown governed 
through separate bodies in the several Colonies, the chief 
element of which was the Legislature chosen, as to its 
Lower House at least, by the voters and vested with the 
sole power of making grants to the Crown and levying 
taxes and also with the power of initiating and vetoing all 



THE EFFORT OF AMERICA 293 

projects of law. If the British Parliament could be re- 
garded as having any relation to the Colonies at all it 
was only in international, purely external matters, not 
connected with taxation or the imposition of any burdens 
whatsoever. 

The First Continental Congress demanded the accep- 
tance of this view by the King and the Parliament and 
recommended the assembly of a second Congress in May 
of the following year unless the grievances should be, be- 
fore then, fully met and removed. This did not happen, 
and, in May of 1775, there assembled again in Philadel- 
phia a body of men of about the same number as before, 
chosen chiefly by conventions of the people within the 
several Colonies. When this body met it was again only 
the National Convention of a party, the patriotic party, 
the party which we may, a Httle later, term the National 
Revolutionary party. Whether it would become anything 
more or other depended also on what it should do. 

Just before it met, however, the conflict of arms had 
begun, in an irregular manner, indeed, but it had certainly 
produced a change of conditions. This second Conven- 
tion, known as the Second Continental Congress, imme- 
diately assumed constituent powers, that is, the powers 
of sovereignty. It created an Army, a Navy, a Treasury, 
and a Post-Offlce and elected a Commander-in-Chief of 
the forces, that is, a military Executive, and itself as- 
sumed the functions of an ordinary Legislature. Further, 
upon proposition that it create a uniform system of local 
Government to take the place of the British Colonial 
Governments, it authorized, under the form of suggestion, 
the inhabitants of the several Colonial Territories to create 
local governmental institutions for themselves on the basis 
of the broadest possible suffrage. Finally, after all this 



294 GOVERNMENT AND LIBERTY 

constructive constituent work had been done, the Con- 
gress declared, in the name and by the authority of the 
good people of the Colonies, the United Colonies to be 
free and independent. National unity and National sov- 
ereignty preceded thus the Declaration of Independence 
and produced it. This was all in the line of a sound and 
true development, and had the Congress, the people, and 
the new States of the Union gone straight forward upon 
this line, the great problem of the reconciliation of Govern- 
ment with Liberty would have been well set upon the way 
of solution. But, unhappily, as it appears to the student 
of political history, this ideal start was checked and im- 
peded in its earliest stages of progress, and fifteen years 
of experience and of suffering followed before these imped- 
iments were only partially removed, and even to-day they 
have not been entirely removed. 

The steps of this erroneous course of things can now be 
easily traced. The Congress appointed, upon the same 
date, the Committee upon Independence and that upon 
the Constitution. But tearing down is an easier and 
more rapid work than building up, and the latter Com- 
mittee made its report later and the Congress, engaged 
in the active work of Government, of Government too 
under the strain and stress of war, did not take up the 
report for consideration until November of 1777. 

During the period between July of 1776 and November 
of 1777, the most capable personages of the Congress with- 
drew from it to take part in the State Conventions for 
forming the new State Constitutions and Governments and 
then to take the posts of Governors, Judges, and legisla- 
tors in the new State Governments. The prestige of the 
Congress sank with its capacity, as that of the States 
rose, and the jealousies engendered between the States 



THE EFFORT OF AMERICA 295 

where the chief burden of the war fell and those exempt 
from the same, in greater or less degree, tended to breed 
a sense of hostility and disunion. When, then, the Con- 
gress took up the work of framing the first Constitution 
of the new Union, it had neither the capacity nor the dis- 
position to combat the claims of the States to exaggerated 
powers in Government, even to sovereignty, and it drafted 
an instrument termed "Articles of Confederation," which 
proposed the creation of a system, the fundamental prin- 
ciple of which was a Confederation of sovereign States, 
with a central Government, consisting of a Congress of ^ 
delegates chosen by the Legislatures of the several States, ^ 
exercising functions in the nature of suggestion rather 
than powers, and these confined to a narrow Hst of speci- 
fied subjects, without any sphere of Individual Immunity 
against governmental power, and of course without any 
means of defending such a sphere against encroachment 
by the Congress of the Confederation, on the one side, or 
the States of the Confederation, on the other. 

In this new system, the first written instrument for the 
United States of America, there was thus not even an 
attempt to solve the great problem of the relation of Gov- 
ernment to Liberty, A maimed and puerile Government 
and the utter ignoring of Liberty were its chief features. 
It was adopted by the Legislatures of all the States and 
went into operation in the year 1781. 

In six years of contemptible existence, it demonstrated 
that it had not only not advanced the great problem of 
political civilization a single hair's breadth toward solution, 
but that under it local Government was fast becoming 
either despotic, in one case, or anarchic, in another, 

A few of the greater minds saw the error of the whole 
situation, but were greatly puzzled how to escape from 



296 GOVERNMENT AND LIBERTY 

it, because any change in the Articles of Confederation 
required the approval of the Legislature of every State 
of the Confederation. They tried first one way and then 
another and finally succeeded in getting a resolution through 
the Congress of the Confederation on the 21st of Febru- 
ary, 1787, which read: ''That in the opinion of Congress 
it is expedient that, on the second Monday in May next, 
a convention of delegates, who shall have been appointed 
by the several States, be held at Philadelphia for the sole 
and express purpose of revising the Articles of Confedera- 
tion and reporting to Congress and the several Legisla- 
tures such alterations and provisions therein as shall, 
when agreed to by Congress and confirmed by the States, 
render the Federal Constitution adequate to the exigencies 
of Government and the preservation of the Union." The 
language here used differs a little from that employed in 
the paragraph of amendment of the Articles of Confedera- 
tion. The existing law of amendment required the ap- 
proval of the Legislature of each and every State to any 
change in the Articles of Confederation. This resolution 
speaks of approval by the States, without referring to the 
bodies within the States which should act or declaring 
specifically that all the States must approve to affect any 
change. Also the Congressional resolution speaks of the 
''Federal Constitution" instead of using the strictly legal 
designation of "Articles of Confederation." We do not 
know why these discrepancies in language were brought 
in or allowed to slip in. The resolution certainly does 
appear to give more latitude than the Articles. However 
that may be, the provision of the Articles was the law 
and any departure from it which the resolution might be 
conceived to allow was absolutely null and void. 

In answer to this resolution the Legislatures of all 



THE EFFORT OF AMERICA 297 

the States, except that of Rhode Island, elected delegates, 
and the persons chosen met in May, as required by the 
resolution, in Philadelphia. There is no question that 
they were the natural leaders, the best pohtical minds of 
the country, and that they, if anybody, could handle the 
great problem which confronted them. 

Two things they saw quite clearly from the outset. 
The first was that what they wanted was no amendment 
nor revision of the Articles of Confederation but a new 
instrument from start to finish, and a genuine Constitu- 
tion at that. The second was that they must find some 
other way of putting it into force than the way prescribed 
in the Articles of Confederation, since this required the 
approval of the Legislature of every State and the atti- 
tude of the Legislature of Rhode Island to the Conven- 
tion proved clearly enough that this Legislature would 
assent to no departures from these Articles. This was a 
profoundly serious thing. The method of changing the 
organic law provided in these Articles was the law of the 
land. The employment of any other method would be 
unlawful. It would be revolution, if successful. If not 
successful, it would be attentat approaching treason. The 
men of that Convention were large-minded enough not to 
be deterred by these considerations. They went straight 
forward, created a real Constitution of Government and 
Liberty and resolved that when the same should be ap- 
proved by Conventions of the people in nine of the States 
of the Confederation it should be regarded as established 
over them and be put into operation. 

Upon receiving notification of the adoption of the New 
Constitution by the Conventions of nine of the States, 
the Congress of the Confederation immediately framed a 
resolution for putting the new system into operation. 



298 GOVERNMENT AND LIBERTY 

During the period between the introduction and the pas- 
sage of the resolution, Conventions of the people in two 
more States adopted the Constitution, and it was put 
into operation in April of 1789, when Conventions of the 
people in only eleven States had ratified it. In fact the 
people of Rhode Island had in their town meetings re- 
jected it. 

They undoubtedly supposed and had certainly good 
reason to suppose that their act had defeated the new 
Constitution altogether and had preserved the Union under 
the Articles of Confederation, but when the Congress of 
the Confederation and the supporters of the new Consti- 
tution went resolutely forward and put the new system 
into operation, thereby destroying the old system of the 
Confederation, without any regard to the method for 
doing so contained in the Articles of Confederation, the 
only legal method, and thus left North Carolina and 
Rhode Island isolated and in danger of being absorbed 
by conquest. Conventions in both of these States quickly 
ratified, and by the middle of the year 1790 the Union 
under the new Constitution was complete. 

During the period of ratification several of the Con- 
ventions had suggested an extension of the realm of In- 
dividual Immunity in the Constitution, which was imme- 
diately done in the manner prescribed in the new Con- 
stitution itself for its own amendment. With this the 
new instrument received its complete original form. There 
is thus no possible way of explaining the genesis of the 
new Constitution from the point of view of existing law. 
It was a revolutionary procedure pure and simple. It 
was an original sovereign act of the people of the nation 
organized in National and State Conventions. 

Let us now examine the fundamental principles of the 



THE EFFORT OF AMERICA 299 

new Constitution in connection with the method of its 
creation and see how near it came to the solution of our 
problem. As I have said, again and again, the first ele- 
Tneht in that solution is the existence of a sovereign power 
back both of Government and Liberty, which shall create, 
define, and correlate both and protect each against the 
encroachments of the other. In the original formation of 
the Constitution of 1787 this requirement was, as we have 
seen, fulfilled. It remains now to be seen whether the 
continuing organization of such a sovereign power is pro- 
vided in the Constitution itself for future changes. Ar- 
ticle V contains the provision which we are seeking. It 
authorizes four ways for amending or revising the or- 
ganic law. The first is through initiation by Congress 
ratified by the Legislatures of three-fourths of the States 
of the Union; the second is through initiation by Con- 
gress ratified by Conventions of the people in three-fourths 
of the States; the third is through initiation by a Con- 
vention of the United States ratified by the Legislatures 
of three-fourths of the States; and the fourth is through 
initiation by a Convention of the United States ratified 
by Conventions of the people in three-fourths of the 
States of the Union. The last method is from the point 
of view of Political Science the ideal one. It organizes 
the sovereignty back of both Government and Liberty 
and makes it commanding over both in all respects but 
two. These two flaws in the principle are the necessity 
for the Legislatures of two-thirds of the States of the 
Union to join in the call for the national Convention and 
the exception of the provision which established the equal 
representation of the States in the Upper House of the 
national Legislature from the operation of the sovereign 
power as thus organized. No sovereign power is perfectly 



300 GOVERNMENT AND LIBERTY 

organized until its action is freed from all obstacles by 
Government and until it is supreme over every subject. 
In the continuing organization of the sovereign power, 
the most fundamental principle of any Constitution, the 
Constitution of the United States, while far in advance 
of most of the organic instruments of the states of the 
world, is certainly surpassed by the provisions of the 
Swiss Constitution. Moreover, it must be remembered 
that in practise this more ideal method of organization 
has, since the original adoption of the Constitution, never 
been employed, but only the method first described, viz.: 
initiation by the national Legislature, the Congress, and 
ratification by the Legislatures of two- thirds of the States 
of the Union. While this method has the advantage of 
practical convenience, it hinders the solution of the great 
problem of the reconciliation of Government and Liberty 
by leaving too much to Government, since through it 
Government as a whole can increase its own powers. It 
can, therefore, make itself absolute and extinguish Liberty 
entirely. 

The second factor, as we have so often seen, in the solu- 
tion of our problem is the realm of Individual Immunity 
against governmental power. The original Constitution, 
considering the first ten amendments as contemporaneous 
with the same and therefore as a part of the same, con- 
tained such a realm. In outUne it provided that Gov- 
ernment should not arrest the person except by special 
warrant, where warrant was necessary; that Government 
should not detain except by judicial order, and should 
not demand excessive bail; that it should not prosecute 
for infamous crime except upon indictment by grand 
jury; that it should pass no sentence by a legislative act 
and condemn under no retroactive law; that it should 



THE EFFORT OF AMERICA 301 

subject no person twice to jeopardy of life or limb, nor 
compel any person in a criminal case to give testimony 
against himself; that it should try no person accused of 
crime except by an impartial jury, publicly, after infor- 
mation furnished the accused of the nature and cause of 
the accusation, with right to be confronted by witnesses 
against him and to have compulsory process for securing 
witnesses in his favor, nor deprive any person of his life 
or liberty without due process of law; that Government 
should deprive no person of his property without due 
process of law, should exact no direct tax from him ex- 
cept under the limitation of apportionment among the 
States of the Union according to population, and no duty, 
import or excise, except under the limitation of uniformity 
throughout the United States, and should not take his 
property except for a public purpose and except under 
the limitations both of just compensation and of due proc- 
ess of law in making the condemnation and ascertaining 
the amount of the compensation; that Government should 
not deny to any person the freedom of religion nor compel 
him to adhere to, or contribute to the support of, any 
religion; that Government should not deny to any person 
the freedom of expressing his thoughts either verbally or 
through publication; and that Government should not 
deny to any person or persons the right to assemble peace- 
ably and petition Government for redress of grievances; 
finally, that Government should not define the crime of 
treason, except as defined in the Constitution, viz.: as 
the levying of war against the United States or adhering 
to their enemies, giving them aid and comfort, nor con- 
vict any one for treason except on the testimony of two 
witnesses to the same overt act or on confession in open 
court, nor punish treason by corruption of blood or for- 



302 GOVERNMENT AND LIBERTY 

feiture of estate except during the life of the convicted 
person. [ 

This is a fairly complete domain of Individual Immu- 
nity against governmental power. The original fault with 
it was that, with the exception of the Immunity against 
the power of Government in the definition, trial, and pun- 
ishment of treason, and of certain limitations upon the 
powers of the States in the levy of duties on exports, im- 
ports, and tonnage and in the enactment of retroactive 
laws, it held only against the central Government. The 
States of the Union might still encroach upon it. 

For seventy years nothing was done to cure this fault, 
although it was becoming more and more manifest that 
in the States legalizing slaveholding the tyranny of Gov- 
ernment was increasing and was even threatening the Liber- 
ties of the Individual in the States in which slavery was un- 
lawful. The crisis in this development was reached in 1861 
and the vindication of Liberty was, finally, constitution- 
ally authenticated by the thirteenth and fourteenth amend- 
ments, which abolished personal slavery everywhere within 
the Union, made citizenship national, declared the equal 
protection of the laws against the powers of the States, and 
prohibited the States from depriving any person of life, 
liberty, or property without due process of law. 

With this a national domain of Individual Immunity 
against all governmental power, central or local, of prac- 
tically sufficient proportions, was constructed within the 
Constitution, and for nearly fifty years the country pro- 
gressed under it, and men began to fancy that the solu- 
tion of the great problem had been finally attained, when 
suddenly, almost like a bolt out of blue sky, came the up- 
heaval of 191 2, which has changed the face of things al- 
most beyond recognition. I will reserve the discussion 



THE EFFORT OF AMERICA 303 

of this change, however, to the concluding pages of this 
work, after I shall have treated of the means created by 
the Constitution of the United States for defending this 
sphere of absolute Immunity against all governmental 
power and shall have compared the provisions of the Con- 
stitutions of the other American states with those of the 
Constitution of the United States. 

These means are of two general sorts. Those of the 
first sort are to be found in the general structure of the 
Government itself and those of the second in the relation 
of the independent Judicial power to the poHtical depart- 
ments of the Government. 

The first feature in the governmental system of the 
United States to which I will call attention as bearing 
upon the problem I am handHng is that it is Federal Gov- 
ernment. It is usual to speak of the Government at 
Washington, the central Government, as the Federal 
Government. I do not use the term in that sense. By 
Federal Government I intend a system of Government in- 
cluding two or more sets of governmental organs resting 
upon a common sovereignty, but independent in so great 
a measure of each other that neither can be regarded as 
the agent of the other, a system in which the common 
sovereign distributes the powers of Government between 
these different sets of governmental organs on the principle 
that the powers in regard to national subjects shall go to 
the Central Government and those in regard to local sub- 
jects to the local Governments, the States of the Union. 

In this distribution of governmental powers between 
two or more sets of governmental organs there is a cer- 
tain security that the realm of Individual Immunity 
against governmental power will not be encroached upon. 
It is seldom a complete reliance and not always a partial 



304 GOVERNMENT AND LIBERTY 

one. But it is easy to see that absolutism in Government 
can hardly perfect itself where the whole governmental 
power is not held by any one set of organs. Generally 
speaking, it is in some small degree at least a defense. 
This is especially true when the powers of the Central 
Government are expressly enumerated and the residuary 
powers are reserved to the local organs, the States of the 
Union, and when the ultimate point of residuary Govern- 
ment is the local Legislature. It is true that under cer- 
tain conditions the local Legislature may be more ty- 
rannic than the general. But it is not generally so. It 
is generally more fully controlled by considerations of In- 
dividual Liberty than the central Legislature. 

The second feature of the governmental system of the 
United States, from the point of view of our problem, is 
that it is elective Government. Before the Revolutions 
of 1848 this would surely have been considered a defense 
of Individual Immunity against governmental power. 
But now that the old Monarchic power of the King has 
generally become simply the executive power in the hands 
of a permanent chief, this is not so apparent. In fact it 
is often the case that an elected body proceeds with less 
consideration for Individual Liberty than a King. 

The third feature of the construction of the Govern- 
ment which must be considered from the point of view 
of our problem relates to the distribution of the powers 
of Government among several departments according to 
their nature, creating what is known as the check-and- 
balance system of Government. In this connection I will 
speak only of the distribution of powers between the 
Legislature and the Executive and the co-ordination of 
the Legislature and the Executive in the exercise of them. 
The Constitution confers upon the Legislature, the Con- 



THE EFFORT OF AMERICA 305 

gress, the making of laws and ordinances, the levy of 
taxes, and the making of appropriations, and upon the 
Executive the Commandership of the Army and the 
Navy and the control of the diplomatic and civil service 
to the end that he may defend the country against inva- 
sion, suppress insurrection, and execute the laws. This 
is, broadly speaking, the line of demarcation between 
legislative and executive functions, and the preservation 
of this line has a tendency to retard the development of 
Government in its almost inevitable tendency to absolu- 
tism, To effect this, however, this line of demarcation 
must be real, not fictitious, as is the case in what is termed 
Parliamentary Government, as is the case, for example, 
in the relation of the British Parliament to the King. 
And that this may be so the Executive must be both re- 
sponsible to the Legislature in a certain way and inde- 
pendent of it in another. If he should undertake to as- 
sume legislative functions, that is, if he should attempt 
a coup d'etat, the Legislature must hav6 the power and 
the process of removing him, so guarded, however, as 
not to be possible of employment simply to get rid of 
legitimate differences of opinion. And if the Legislature 
should undertake in its enactments to encroach upon and 
assume executive functions, the Executive must be fur- 
nished with the power and the means of preventing the 
same, not to such a degree, however, as to enable him to 
absolutely control legitimate legislative action. In the pro- 
visions of the Constitution for the impeachment of the 
President by the Lower House of Congress and his trial 
and condemnation by the Upper, the Senate, but only 
by an extraordinary majority, and, on the other hand, 
for the veto by the President of all ordinary acts of the 
legislative branch, but which can be overcome by an ex- 



3o6 GOVERNMENT AND LIBERTY 

traordinary majority in both Houses, these relations are 
so arranged as to have maintained the Legislature and the 
Executive independent of, and yet co-ordinated with, each 
other. This is certainly more favorable to the preserva- 
tion of limited Government than the autocracy of the 
President, on the one hand, or control of the administra- 
tion by the Legislature, on the other. 

But the chief and most effective means provided in the 
Constitution for the protection of the Immunity of the In- 
dividual against governmental power consists in the con- 
stitutional position and power of the Judiciary, both State 
and National. The clauses of the organic law relating 
to this subject read as follows: "The Judicial power of 
the United States shall be vested in one Supreme Court 
and in such inferior Courts as the Congress may, from 
time to time, ordain and estabUsh. The Judges, both of 
the Supreme and inferior Courts, shall hold their offices 
during good behavior, and shall, at stated times, receive 
for their services a compensation, which shall not be di- 
minished during their continuance in office. The Judicial 
power shall extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their 
authority. This Constitution and the laws of the United 
States which shall be made in pursuance thereof; and all 
treaties made, or which shall be made, under the authority 
of the United States, shall be the supreme law of the 
land; and the Judges in every State shall be bound thereby, 
anything in the Constitution or laws of any State to the 
contrary notwithstanding." 

A close reading of the debates of the Convention and 
of the essays of the Federalist will reveal the purposes in 
detail of these provisions. They were to vest the whole 



THE EFFORT OF AMERICA 307 

Judiciary of the country, both State and National, with 
the power to maintain the supremacy in the order, first, 
of the Constitution of the United States, then of the Laws 
and Treaties of the United States made in pursuance of 
the Constitution of the United States, then of the Con- 
stitutions of the States made in pursuance of the Consti- 
tution, Laws, and Treaties of the United States, and finally, 
of the laws of the States made in pursuance of their Con- 
stitutions and the Constitution, Laws, and Treaties of 
the United States. To effect these things the Courts 
of the United States were' vested with the power to de- 
clare the Acts of Congress, the Treaties of the United 
States, the Constitutions of the States of the Union, the 
acts of the State Legislatures and aU executive acts and 
orders null and void whenever, in the opinion of the Court, 
they came into conflict with the provisions of the Consti- 
tution of the United States. They were also vested with 
the power of declaring the provisions of the Constitutions 
and the legislative or executive acts and orders of the States 
of the Union null and void whensoever they, in the opinion 
of the Court, came into conflict with a Law of Congress or 
a Treaty of the United States made, in the judgment of 
the Court, in pursuance of the Constitution of the United 
States. On the other hand, the Courts of the States of 
the Union were vested with the power of declaring the 
provisions of the Constitutions of the States and the acts 
of the State Legislatures and Executives, also the Acts 
of Congress and the Treaties of the United States, null 
and void when, in the opinion of the Court, they contra- 
vened any provision of the Constitution of the United 
States. But the judgments of the Courts of the States 
declaring an Act of Congress or a Treaty of the United 
States unconstitutional or the provisions of a State Con- 



3o8 GOVERNMENT AND LIBERTY 

stitution or the acts of a State Legislature constitutional, 
as tested by the provisions of the Constitution of the 
United States, were made subject to revision, on appeal 
or writ of error, by the Supreme Court of the United 
States. 

We assume that the prime object of these arrangements 
was the maintenance of the proper order of authority in 
the several parts of the whole law of the land, but it is 
easy to see how they protect the Immunities of the In- 
dividual against governmental power in a much more 
effective way than ever before conceived and realized, 
because these Immimities, being a part of the constitu- 
tional law of the United States, take precedence of every 
other branch of the law and must be so held and so upheld 
by the Courts, both State and National. 

It would be hardly correct to say that the framers of 
the Constitution of 1787 invented this method and means 
for the protection of Liberty against Government and the 
reconciliation of Government with Liberty, for, besides 
the European examples which I have cited in the fore- 
going pages, they had before them several cases in the 
Supreme Courts of the States of the Confederation in which 
these Courts nullified statutes of the State Legislatures 
as being in conflict with the State Constitutions, and at 
least one case in which the Supreme Court of a State 
nullified an act of the State Legislature as being in con- 
flict with the Articles of Confederation. They are, how- 
ever, to be credited with having given form to the raw 
material, so to speak, of the scheme and with having 
supplemented, developed, and perfected it. 

If we confine ourselves to an account of the construc- 
tion of this scheme in the contemporaneous reports, we 
can have little doubt as to its nature and purpose. Every- 



THE EFFORT OF AMERICA 509 

body in the Convention of 1787 realized the necessity of 
securing the supremacy of the Constitution of the United 
States over all other parts of the law of the land, and 
also of securing the supremacy of the Acts of the National 
Legislature and the Treaties of the United States over the 
Constitutions and legislative acts of the States of the 
Union. The Randolph Resolutions, the first body of prop- 
ositions laid before the Convention, contained a provi- 
sion for the solution of this question. It was the provision 
giving the Legislature of the United States a veto on the 
legislation of the States. This was soon seen to be de- 
fective in several respects. First, it did not cover the 
whole ground. It offered no way for protecting the Con- 
stitution against the Acts of the National Legislature, the 
Congress. Then it was offensive to all having a strong 
States'-rights feeHng. The substitution of the judicial for 
the legislative method in dealing with this fundamental 
problem was consciously done and it filled up all the gaps 
in the scheme. It was one thing to have every act of 
a State Legislature really held up by Congress, and quite 
another to have it possibly questioned in a lawsuit be- 
fore learned jurists and nullified entirely on legal and ju- 
ristic grounds, if nullified at all, and it was soothing to 
State pride that the Acts of the Congress of the United 
States were made subject to the same principle as the 
acts of the State Legislatures and that the State Courts 
were vested with similar powers in this respect to those 
exercised by the Courts of the United States. 

There never would have been any doubts in regard to the 
views and purposes of the framers of the Constitution or 
in regard to the meaning of the provisions of the Consti- 
tution framed by them to solve the great problem, ex- 
cept for the States'-rights turn which American politics 



3IO GOVERNMENT AND LIBERTY 

took in the period between 1794 and 1800. Every stu- 
dent of American history knows that the enactment by 
Congress of the AHen and Sedition Laws in 1798 and 
the prosecutions under them precipitated a struggle cul- 
minating in the attempt of two State Legislatures, those 
of Virginia and Kentucky, to assert for the Legislatures of 
the States of the Union the power of determining the 
constitutionality of Acts of Congress and of nullifying 
the same, that of Kentucky distinctly and that of Vir- 
ginia rather confusedly. They appealed to the Legisla- 
tures of the other States to join them in their declara- 
tion, but not one of them did so. On the other hand, 
all that answered at all condemned the position taken by 
the two Legislatures, and five of the seven answering de- 
clared outright that it was the function of the Courts 
alone, and ultimately of the Supreme Court of the United 
States, to declare Acts of Congress unconstitutional. 

Four years later the question came up judicially in the 
case of Marbury vs. Madison, and Chief Justice Marshall, 
in a course of reasoning which is impregnable, held that 
"the basis on which the whole American fabric has been 
erected" is "the original right of the people to establish, 
for their future government, such principles as, in their 
opinion, shall most conduce to their own happiness. The 
exercise of this original right is a very great exertion, 
nor can it be, nor ought it to be, frequently repeated. 
The principles, therefore, so established are deemed fun- 
damental, and, as the authority from which they pro- 
ceed is supreme and can seldom act, they are designed 
to be permanent. This original and supreme will organ- 
izes the Government, and assigns to different depart- 
ments their respective powers. It may either stop here 
or establish certain limits not to be transcended by those 



THE EFFORT OF AMERICA 311 

departments. The Government of the United States is 
of the latter description. The powers of the Legislature 
are defined and limited; and, that these Hmits may not 
be mistaken or forgotten, the Constitution is written. 
The Constitution is either a superior permanent law, 
unchangeable by ordinary means, or it is on a level with 
ordinary legislative acts and, like other acts, is alterable 
when the Legislature shall please to alter it. If the former 
part of the alternative be true, then a legislative act con- 
trary to the Constitution is not law; if the latter part 
be true, then written Constitutions are absurd attempts, 
on the part of the people, to limit a power in its own 
nature ilUmitable. Certainly all those who have framed 
written Constitutions contemplate them as forming the 
fundamental and permanent law of the Nation, and con- 
sequently the theory of every such Government must be 
that an act of the Legislature repugnant to the Consti- 
tution is void. This theory is essentially attached to a 
written Constitution and is consequently to be considered 
by this Court as one of the fundamental principles of our 
society. If an act of the Legislature, repugnant to the 
Constitution, is void, does it, notwithstanding its inva- 
lidity, bind the Courts and oblige them to give it effect? 
Or, in other words, though it be not law, does it consti- 
tute a rule as operative as if it was a law? This would 
seem, at first view, an absurdity too gross to be insisted 
on. It is emphatically the province and duty of the 
Judicial Department to say what the law is. Those who 
apply the rule to particular cases, must of necessity ex- 
pound and interpret that rule. If two laws conflict with 
each other the Courts must decide on the operation of 
each. . , . So if a law [an act of the Legislature] be 
in opposition to the Constitution; if both the act of the 



312 GOVERNMENT AND LIBERTY 

Legislature and the Constitution apply to a particular 
case, so that the Court must either decide that case con- 
formably to the act of the Legislature, disregarding the 
Constitution, or conformably to the Constitution, dis- 
regarding the act of the Legislature, the Court must 
determine which of these conflicting rules governs the 
case. This is of the very essence of Judicial duty. If, 
then, the Courts are to regard the Constitution, and the 
Constitution is superior to any ordinary act of the Legis- 
lature, the Constitution, and not such ordinary act, must 
govern the case to which they both apply." 

This entire argument is easily seen to be based upon 
the nature of a written Constitution, as the most funda- 
mental part of the law of the land, and upon the unavoid- 
able necessity for the Courts to apply it as paramount 
law in all cases coming before them. It is undoubtedly 
sound reasoning. But, in order that this reasoning should 
not be undervalued as theoretical merely, it is of impor- 
tance that it should be sustained by some constitutional 
provision. Happily, as we have already seen, the Con- 
stitution ordains that the Judicial power of the United 
States shall extend to all cases in law and equity arising 
under the Constitution as well as under Acts of Con- 
gress and Treaties and that the Judges of the State Courts 
shall be bound first of all by the Constitution of the United 
States as the supreme law of the land, anything in the 
State Constitution or laws to the contrary notwithstand- 
ing. The whole of the great Chief Justice's argument 
is unassailable. 

But in order that the position thus claimed for the 
Judicial power under a written Constitution should be 
effective, two things more must concur. The first is that 
the Judiciary shall be an independent department estab- 



THE EFFORT OF AMERICA 313 

lished and sustained by the Constitution, otherwise the 
Legislature could avoid its restraining power by simply 
abolishing the Courts or limiting them by its own Stat- 
utes. This is exactly why the Imperial Courts of the 
German Empire cannot assert and maintain the full au- 
thority enjoyed by the Supreme Court of the United States. 
The other necessary thing to make the judgments of the 
Courts efifective in decreeing the unconstitutionality of 
legislative acts is that the executive power must enforce 
the Judicial decisions. There must not be any discretion 
upon this point allowed the Execiitive. The Constitu- 
tion should make it an impeachable offense for the Execu- 
tive to fail to exert every element of power at his com- 
mand to this end. 

After the decision in Marbury vs. Madison the Nation 
appeared to recognize its principle with great unanimity 
as the rule of the Constitution and as the indispensable 
prerequisite of a Constitutional Republic. Ten years 
passed, when the attitude of the Commonwealths of 
Massachusetts, Connecticut, and Rhode Island regard- 
ing the demands made upon them by the central Gov- 
ernment in prosecuting the War of 181 2-1 5, seemed to 
threaten the supre.macy of the Judiciary in constitutional 
interpretation, by the claim of a more ultimate power for 
the State Legislatures again. Happily, however, this went 
no further than a confused pronunciamento. 

Fifteen years more rolled by without the principle of 
Marbury vs. Madison being further questioned or threat- 
ened, when the contest between the central Government 
and the State of Georgia involved, finally, the Judicial 
power. The Constitution of the United States vests 
Congress with the exclusive power of making rules and 
regulations concerning the territory belonging to the United 



314 GOVERNMENT AND LIBERTY 

States and to regulate commerce with the Indian tribes. 
Unmindful of these provisions and disregarding the prec- 
edents, the Government of the State of Georgia, in the 
case of Worcester vs. Georgia, defied the judgment of the 
Supreme Court of the United States in the constitutional 
question and defied it successfully. The Legislature of 
Georgia passed an act making it a criminal offense for 
any one not a member of the Indian tribe or nation of 
the Cherokees situated within the limits of the State 
of Georgia to reside among them after March 31, 1831, 
without a license from the Governor of the State and 
without having taken an oath to obey and support the 
laws of the State. One Worcester, a missionary of the 
Presbyterian Church, violated this enactment, believing 
that the State had no jurisdiction over any person on 
the lands occupied by the Cherokees within the limits 
of the State. He was arrested by Georgia officials, tried 
by a Georgia Court, found guilty, condemned to im- 
prisonment, and committed to the penitentiary of the 
State. His friends succeeded in procuring a writ of error 
from a Justice of the Supreme Court of the United States 
requiring the State of Georgia to show cause why the 
prisoner should not be liberated. This writ was served 
in due form on the Governor and Attorney-General of 
the State. Neither of these appeared before the Court 
or Justice, or made any answer to the writ. The clerk 
of the Georgia Court simply sent to the United States 
Court a record of the case in the Georgia Court duly 
authenticated. The Supreme Court of the United States 
determined that this was sufficient to establish the juris- 
diction of the Court and took up the case. Chief Justice 
Marshall himself delivered the opinion; pronouncing the 
statute of the Legislature of the State of Georgia assert- 



THE EFFORT OF AMERICA 315 

ing jurisdiction over persons within the lands occupied 
by the Cherokees to be null and void and the proceed- 
ings against Worcester to have been without warrant of 
law. The Georgia authorities ignored the decision and 
retained Worcester in prison. The President of the United 
States did not undertake to enforce the decision of the 
Court. It was common rumor that he declared he did 
not intend to execute it. This is the case over which 
the gossip went round that the President said: "John 
Marshall has made his decision; now let him execute it." 
If the President took this attitude it was most repre- 
hensible. It was an unwarranted executive interference 
with the highest Judicial function. The Governor of the 
State somewhat later pardoned Worcester and he was 
discharged from prison on the Governor's pardon and 
not on the Court's order. The result of this controversy 
was a harmful strengthening of the States '-rights view of 
the Union now soon to be made the absorbing issue in the 
nullification ordinance of South Carolina. 

Nearly twenty-five years more now elapsed during which 
period the principle laid down in . Marbury vs. Madison 
was applied and accepted in every direction and the rule 
of the Constitution giving the Courts, especially the United 
States Courts, and most especially the Supreme Court of 
the United States, the power of nullifying all legislative 
as well as executive acts which were, in the opinion of 
the Court, trying the cases in which such acts were in- 
volved, repugnant to the Constitution, became fixed as 
the prime doctrine of the pubhc law of the Republic. 

This doctrine was now, however, through an indiscre- 
tion of the Chief Justice of the Supreme Court itself, par- 
ticipated in by the majority of the Court, destined to 
receive another rude shock. I refer to the famous Dred 



3i6 GOVERNMENT AND LIBERTY 

Scott case. Assuming that every reader of this book is 
more or less familiar with the details of this case, I will 
deal with it only in outline. Sometime between 1830 and 
1840 one Doctor Emerson, a resident and citizen of the 
State of Missouri, being an Army Surgeon, was ordered 
to Fort SnelUng, in the Louisiana Territory north of 
36° 30', from which slavery had been abolished by the 
Missouri Compromise Act of Congress of the year 1820. 
The Doctor, nevertheless, took his slave, Dred Scott, with 
him as his body-servant. At Fort Snelling Dred Scott 
married a negro woman, the slave of an Army officer sta- 
tioned there, and Doctor Emerson purchased this woman 
from her master and took both of these negroes back to 
Missouri in the year 1838. Doctor Emerson died in the 
year 1844, leaving the Scotts to his wife as slaves. They 
served Mrs. Emerson until 1853, when Dred Scott brought 
a suit for his freedom in a Missouri Court, on the ground 
that his residence in the Louisiana Territory above 36° 30' 
had made him a free man. The lower court of Missouri 
decided in his favor. Mrs. Emerson then appealed the 
case to the Supreme Court of the State, which decided that, 
no matter what the result of residence in a free Territory 
might be as to a slave brought into it by his master, the 
law of Missouri determined the status of the negro on his 
return to Missouri. 

Before the Supreme Court of the State had, however, 
reached its decision, Mrs. Emerson had transferred the 
Scotts to a relative, one Sandford, a citizen of New York, 
who hired them out in the State of Missouri, and Dred 
Scott had brought a suit in the Circuit Court of the United 
States before Judge Catron, a citizen of Tennessee, against 
Sandford for his Uberty. The first question for the Cir- 
cuit Court was, of course, whether Dred Scott could sue. 



THE EFFORT OF AMERICA 317 

The Jurisdiction of the Circuit Court rested upon that 
clause of the Constitution which confers the same in con- 
troversies between citizens of different States. But was 
Dred Scott a citizen of Missouri? Judge Catron held that 
as it was only alleged by Sandford that Dred Scott was 
a negro descended from slave parents, and that as there 
were such negroes who were citizens of some of the States, 
the presumption must be that Dred Scott could sue in his 
Court. However, before the case came to decision in the 
Circuit Court, the case of Scott vs. Emerson in the Su- 
preme Court of the State was decided in the way above 
recited, and Justice Catron finally declared that his Court 
must follow the law of Missouri upon the subject as ex- 
pounded by the Supreme Court of the State of Missouri, 
where there was no repugnance to the Constitution, laws, 
and treaties of the United States; and the law of Mis- 
souri was, as declared by the Missouri Supreme Court, 
that the condition of slavery reattached to any former 
slave on his return to Missouri, no matter where he had 
been in the meantime. 

Dred Scott now carried his case by writ of error to the 
Supreme Court of the United States, where it was twice 
argued. The opinion of the Court was written by Chief 
Justice Taney, and was concurred in by a decided majority 
of his colleagues. The Chief Justice held that the writ 
of error brought up the entire record of the Circuit Court 
for examination. As we have seen, there were two main 
points in the decision of the Circuit Court. The first 
was as to the jurisdiction of the Court, which turned upon 
whether Dred Scott could be considered a citizen of Mis- 
souri or not, and the second was as to the effect of his 
return to Missouri after his sojourn in the Louisiana Ter- 
ritory. Chief Justice Taney held that the Circuit Court 



3i8 GOVERNMENT AND LIBERTY 

erred in according Scott a standing in court since he was 
not a citizen of Missouri. The Chief Justice declared that 
he was not a citizen because he could not be. This was 
certainly enough and it would certainly have been the 
course of wisdom to have simply remanded the case to 
the Circuit Court with the order to dismiss it for want 
of jurisdiction. If this course had been followed there 
would probably have been Uttle comment upon it. But 
the Chief Justice went further and reviewed the second 
point in the decision of the Circuit Court, viz.: that the 
status of slavery reattached to Scott on his return to 
Missouri. Here again the Chief Justice would have been 
wiser to have simply confirmed the judgment of the Court 
below, and this also would have, in all probabihty, caused 
but little comment. But he went further and took up 
the question whether the Louisiana Territory above 36° 31' 
could be free Territory under the Constitution of the United 
States. This question was not decided by the Court below, 
was not even before the court below, and was not neces- 
sarily involved in what was decided or considered by the 
Court below. This part of the Chief Justice's opinion 
was, therefore, purely obiter dictum. He held that under 
the Constitution of the United States Congress could not 
exclude slavery from any part of the Territory of the United 
States. 

It is not necessary for our purpose to go into the Chief 
Justice's argument upon this point. The thing of impor- 
tance for us is the fact that this attitude of the Supreme 
Court of the United States brought down upon that tri- 
bunal the hostility of the new Republican party, the 
party, which in less than four years was to take posses- 
sion of the Government. Mr. Lincoln, the man destined 
to occupy the Presidential chair, arraigned the Court most 



THE EFFORT OF AMERICA 319 

severely. He regarded the dictum as a political rather 
than a judicial matter. The only remedies which he pro- 
posed, however, were either to induce the Court by argu- 
ment to reverse its opinion, or to induce the people by 
argument to override it by a constitutional Amendment 
in the manner provided in the Constitution itself. All 
this was regular, proper, legitimate, and conservative, and 
not intended to introduce or recommend any novel method 
for solving constitutional questions. The controversy did, 
however, shake the position of the Court, and the period 
of confusion and War which quickly followed was not a 
favorable time in which to re-establish it. 

As was' seeii in the noted Merryman case, the Court 
could not even protect the Individual against the exer- 
cise of extraordinary powers by the Executive, to say noth- 
ing of the Legislature. President Lincoln had Merryman 
arrested in the State of Maryland, a State in which no 
Secession ordinance had been passed, by military order, 
and had him incarcerated in a military prison. He sus- 
pended the writ of habeas corpus, and under this suspen- 
sion held Merryman in confinement, despite the fact that 
the Chief Justice of the United States issued the writ in 
this case and, when the military officer to which it was 
directed declined to make any return and failed to pro- 
duce the prisoner in Court, issued a writ of attachment 
for the body of the commanding officer holding Merry- 
man in confinement. The Marshal of the Court was 
prevented from serving this latter writ by the armed 
sentinel at the headquarters of the military commander. 
The Court now acquiesced in the principle that the po- 
litical departments of the Government may suspend the 
constitutional Immunities of the Individual against gov- 
ernmental power in time of war or rebellion. 



320 GOVERNMENT AND LIBERTY 

At the close of the Civil War the Court began again 
to assert itself against any further suspensions of these 
Immunities. In the famous Milligan case it held that 
the suspension of the writ of habeas corpus did not war- 
rant arbitrary arrest, nor trial by extraordinary tribunals, 
nor according to extraordinary methods, and that where 
the Courts were open and in the proper and unobstructed 
exercise of their jurisdiction, the Government could not 
constitutionally establish and administer martial law. The 
judgment of the Court was obeyed and Milligan was 
liberated from his peril under the military tribunal. 

During the period of Reconstruction three cases came 
before the Court, the decisions in which served to make 
the position of the Court as the ultimate interpreter of 
the Constitution against the Congress itself a little more 
fixed and clear than it had ever been before. 

The first of these cases was that of Mississippi vs. John- 
son. One W. L. Sharkey, who had been provisional Gov- 
ernor of Mississippi by President Johnson's appointment, 
undertook to obtain from the Supreme Court of the United 
States an injunction against President Johnson, to pre- 
vent him from executing in Mississippi the Reconstruc- 
tion Acts of March, 1867. The object of Ex-Governor 
Sharkey was to test before the Supreme Court the con- 
stitutionality of these Congressional Statutes. The Court 
refused the injunction on the ground that the President 
of the United States, while in office, is not subject to the 
jurisdiction of any Court save only the Senate of the 
United States as the Court of Impeachment. 

It was thought at the time that the only reason upon 
which the Court decHned jurisdiction was the official char- 
acter of the person sought to be made defendant. The 
Governor of Georgia, one Jenkins, conceived that this 



THE EFFORT OF AMERICA 321 

obstacle might be overcome by making subordinate offi- 
cials to the President defendants. At his instigation the 
State of Georgia petitioned the Supreme Court of the 
United States to issue a writ of injunction against Stanton, 
Secretary of War, Grant, Commander-in-Chief of the Army, 
and Pope, the Commander of the District in which Georgia 
lay, forbidding them to put into execution or to cause to 
be put into execution the Reconstruction Acts passed by 
Congress in March of 1867. The Attorney-General of the 
United States, Mr. Stanbery, took the ground in a very 
masterful argument that this was a purely poHtical ques- 
tion in which no Individual Immunity was primarily in- 
volved and that the Court had, therefore, no jurisdiction 
in the premises. It was general opinion at that time that 
the power of the Court to pronounce Acts of Congress 
null and void because of repugnance to the Constitution 
was without limitation as to subject, although the Court 
itself in the case of Luther vs. Borden had intimated that 
questions primarily political were not subject to its juris- 
diction. The Court now came out squarely and declared 
its adherence to this principle and from that day to this 
the Court has strictly adhered to it. So that it may 
now be said that in order to move the Supreme Court 
of the United States, and in fact any of the Courts, to 
take jurisdiction where the nulhfication of Legislative Acts 
as repugnant to the Constitution is the necessary condi- 
tion of the rehef sought, the matter must be presented to 
the Court in the form of a case, that is, of a regular law- 
suit, or suit in equity, in which the party asking relief 
shall make it appear, prima facie, that the question pri- 
marily involved is an Individual Right or Immunity against 
governmental power guaranteed to him by the Constitu- 
tion itself. Of course, where the Individual Immunity in- 



322 GOVERNMENT AND LIBERTY 

volves no political question, the matter would be clear 
enough. But what is a political question as distinguished 
from one purely of Private Right, and, in case the two 
are involved in the suit, which is primary and which 
secondary, and how far primary or how far secondary, 
these are all very difficult points to determine. The Con- 
stitution itself does not wholly and expressly determine 
them. The details, at any rate, of the determination are 
to be fixed either by Congress or the Judiciary. If by 
Congress, then the Judicial protection of the Immunities 
of the Individual against governmental power would be 
of little value. It must be, then, the Judiciary which shall 
finally settle these points as well as all others necessary 
to the defense of these Immunities. 

It was much to be desired in the period of Reconstruc- 
tion, i. e., from 1865 to 1875, that these specific questions 
should have been considered and solved. Except for the 
trickery of the Congress of 1868 this might have been. 
I refer to the means employed by Congress to prevent a 
decision being reached in the noted McCardle case, the 
chief points of which were as follows: One W. H. Mc- 
Cardle, a newspaper editor in the State of Mississippi, 
was seized and confined by the military authority under 
which the State was governed in accordance with the 
Reconstruction Acts of Congress. He petitioned the Cir- 
cuit Court of the United States for a writ of habeas cor- 
pus. The writ was addressed to General Gillem, mili- 
tary Commander of the Reconstruction District in which 
Mississippi lay. The General made answer to the writ, 
acknowledging that he had arrested McCardle and still 
held him in custody and pleading the Reconstruction 
Acts in justification. The Court expressed its satisfac- 
tion with the plea and ordered its Marshal to remand 



THE EFFORT OF AMERICA 323 

the prisoner, who had from the time of the serving of the 
writ of habeas corpus been in the custody of the Mar- 
shal, to the keeping of the military authorities. Mc- 
Cardle's counsel then appealed the case to the Supreme 
Court of the United States. The Constitution vests in 
Congress the power to regulate the matter of appeal from 
the lower Courts to the Supreme Court, and Congress had 
by an Act passed February 5, 1867, authorized the appeal 
of such cases as the McCardle case from the Circuit Court 
to the Supreme Court; at least the Supreme Court itself 
interpreted the Congressional Act as authorizing the ap- 
peal in the McCardle case and entertained it by denying 
the motion of the counsel of the military authorities to 
dismiss it. 

Here was now at last the jurisdiction established in a 
case primarily of Private Right, in a case for protecting 
the constitutional right of the Individual to indictment 
by a Grand Jury and trial by a Petit Jury in the Civil 
Courts of his vicinage against the power of the Govern- 
ment to make him subject, in time of peace, to the juris- 
diction of a military tribunal. Inasmuch as the military 
tribunal and its processes were authorized by the Recon- 
struction Acts of Congress, the decision of the case must 
turn in the Supreme Court upon the constitutionality of 
these Acts. The Court evidently regarded this, however, 
as secondary to the protection of the Private Immunity 
against arbitrary power. The Congress and the leaders 
of the Republican party were greatly agitated over the 
prospect, while the President, Johnson, looked calmly on, 
rejoicing at the opportunity of having the constitutionality 
of the Reconstruction Acts finally tested. But he was 
destined to suJffer disappointment. The Congress, being 
overwhelmingly Republican, speedily repealed the Appeals 



324 GOVERNMENT AND LIBERTY 

Act of February 5, 1867, making the repealing Statute 
cover all appeals then on record as well as future attempts 
to appeal, and when the President vetoed the bill, Con- 
gress repassed it promptly over the veto by the necessary 
two-thirds majority. In this shifty way Congress not 
only avoided a decision by the Court on the constitution- 
ality of the Reconstruction Acts, but also deprived Ameri- 
can Jurisprudence of an authoritative direct interpreta- 
tion of some of the important points in the relation of 
the constitutional Immunities of the Individual to the 
so-called political questions which the Court is shy of 
touching in defending the Individual Immunity against 
governmental power. 

The constitutional Amendments following the Civil War 
increased and strengthened the Immunities of the Individ- 
ual against governmental power at the same time that they 
increased the powers of the central Government over against 
those of the States. I said " the Immunities of the Individ- 
ual," but I should have said "the Immunities of Persons," 
because Person is the word used in the Constitution and Per- 
son is, under the interpretation of the Courts, a broader 
term than Individual, in that Individual is synonymous 
with natural Person, while Person covers also artificial 
Persons, corporations. The three great additions to Civil 
Liberty made by the Thirteenth and Fourteenth Amend- 
ments, which prevent the National Government or any 
State of the Union from making any Person a slave and 
prevent any State of the Union from depriving any Per- 
son of life, liberty, or property without due process of law 
and from denying to any Person the equal protection of 
the laws, completed the realm of the Individual Immu- 
nity against governmental power, and the Judicial inter- 
pretation of these Amendments in a sense generally fa- 



THE EFFORT OF AMERICA 325 

vorable to Liberty gave to the United States of America 
the most perfect system of Civil Liberty, the best pro- 
tected and guaranteed against governmental power, ever 
attained in the civilized world. 

I said ''gave," not ''has given," because in the last few 
years a very remarkable and to many a very discourag- 
ing change in popular opinion, if we can consider the 
actions of the politicians, the Congress, and the State 
Legislatures as indicative of the popular opinion, has 
become manifest concerning the relative spheres of 
Government and Liberty and has aheady led to a most 
serious modification of our constitutional law. More- 
over, there does not appear at this moment any pros- 
pect of this new movement checking itself or being 
checked. On the other hand, the pace appears to be 
a continually accelerating one. It appears rather as if a 
new era had begun. Many say and some doubtless 
really think that it is an era of progress, and hail it as if 
the whole course of the world's history hitherto had been 
a failure and even a fraud. But more mature, dispassion- 
ate, and experienced thinkers view the situation and its 
tendencies with apprehension, not to say alarm. They 
see the distinctions between the Old World and the New 
slipping away, and that, too, not by the Old World con- 
tinuing to follow in the course marked out by the New, 
as was the case from, let us say, the year 1848 to 1898, 
but by the New returning to the ideas and practises of 
the Old. As indicated, the change began with the Spanish- 
American War of 1898 and with the acquisition of terri- 
tory separated geographically, and of people separated 
ethnically, from the territory and people of the United 
States. The twisting of the Constitution to meet the 
exigencies thus created has been followed by changes of 



\ 



326 GOVERNMENT AND LIBERTY 

the Constitution internal to the Union itself of a grave 
character, and those already consummated threaten to 
lead on to many more, ending no one can tell where. 

I will not, however, go into this to us all-important sub- 
ject any further at this juncture, but will reserve it for fuller 
and more minute discussion after I shall have presented the 
modern solution given by the South and Central American 
states and Mexico to the great problem which is the theme 
of this work 



CHAPTER II 

THE PRESENT CONSTITUTIONS OF THE STATES OF 
SOUTH AMERICA 

The independence of the states of South America and 
their constitutional systems sprang directly or indirectly 
out of the French Revolution. Originally, in so far as it 
is necessary to our purpose to consider them, they were 
Colonies of Spain and Portugal, and were the creation of 
a dominant race imposing itself by the power of the sword 
on the subject races and attaining legitimacy through the 
religious system of the Roman Catholic Church, the Eu- 
ropean method of state-building. 

The occupation of Spain and Portugal by the armies 
of Napoleon in the first decade of the nineteenth century 
gave the necessary impulse. The great Demoralizer of 
Europe demoralized the sense of loyalty in the American 
Colonies of the European states and set them upon the 
road of Revolution. At first it was substantially the domi- 
nant race, the Europeans by birth or by descent, in the 
several Colonies who declared and won independence 
against the mother countries and only later and gradu- 
ally have the half-breeds and pure aborigines come to 
exert an influence in the development of the states pro- 
ceeding therefrom. That influence has not, however, pro- 
duced any great changes in the original Constitutions. 
These documents still bear the stamp of the pohtical phi- 
losophy of the French Revolution, viz.: national sover- 
eignty originally organized in Convention back of the 

327 



328 GOVERNMENT AND LIBERTY 

Constitution, creating Government and delimiting a sphere 
of Individual Immunity against governmental power. 
They also manifest, in some degree, at least, the influence 
of the Constitution of the United States, especially in the 
more independent power of the Executive and in the 
position of the Judiciary. 

The original Constitutions of all ten of the South Ameri- 
can states were framed and adopted by National Constit- 
uent Conventions, and in this respect they fulfil the 
first condition for the solution of our problem of the rec- 
onciliation of Government with Liberty. But in the 
system and method for constitutional revision, or amend- 
ment, that is, in the organization of a continuing sov- 
ereign power independent of, separate from, and supreme 
over, the Government, they are not all so fortunate. 
Only two of them, viz.: the Argentine Union and Para- 
guay are so. 

On proposition of the two legislative Houses, by two- 
thirds majority in each, a National Convention is assem- 
bled in these two states which adopts the amendment 
or revision. In all the rest the regular legislative branch 
of the Government amends or revises the Constitution. 
The Constitutions of Bolivia and Colombia provide for 
revision or amendment by a legislative Act merely with 
a majority of two-thirds of those voting thereon in each 
House, a quorum being present. That of Brazil makes 
the like provision with the modification that the amend- 
ment or revision must be proposed by the preceding Legis- 
lature, with a two-thirds majority in each House, or by 
the Legislatures of two-thirds of the States of the Bra- 
zilian Union. That of Chili makes the like provision as 
to the adoption of constitutional changes, with the modi- 
fication that if the President agrees with the Chambers 



THE EFFORT OF AMERICA 329 

the passage of the proposition of amendment by two 
Legislatures in succession does not require the extraor- 
dinary, or two-thirds, majority. The Constitutions of 
Ecuador and Peru require for their amendment only the 
passage of the proposition by two Legislatures in succes- 
sion by the ordinary majority required for the enactment 
of Statutes. That of Uruguay requires that the proposi- 
tion of amendment made by one Legislature shall be 
adopted by the succeeding Legislature elected upon this 
issue. Finally the Constitution of Venezuela provides for 
its amendment either by the Legislatures of a simple ma- 
jority of the States, when the proposition is first made 
on the initiative of the Legislatures of three-fourths of 
the States of the Union and approved by the national 
Legislature, the Congress, or by the Legislatures of three- 
fourths of the States, when the proposition is initiated by 
the Congress. 

In these eight states, therefore, there is no separation 
of the organ of sovereignty from the organs of Govern- 
ment. The ordinary legislative Chambers act both as sov- 
ereign and as legislative branch of the Government. The 
only difference lies in the method of action and in some 
cases in the majority necessary for action also. But this 
is not at all sufficient to guard the constitutional Immu- 
nities of the Individual against the encroachments of the 
Legislature itself. We are, therefore, compelled to say 
that the Constitutions of these eight states fail entirely 
to furnish the fundamental element for the solution of our 
problem, viz.: the organization of a sovereign power sep- 
arate from, independent of, and commanding over all the 
organs of Government. In fact, there is but one real 
state in South America which furnishes us with this primal 
indispensable condition, viz.: the Argentine Union. 



330 GOVERNMENT AND LIBERTY 

On the other hand, every South American state has 
written into its Constitution a full Bill of Rights, a well- 
defined and well-delimited domain of Individual Immu- 
nity from governmental power. In general it is provided 
therein that every man shall be the equal of every other 
before the law; that no man shall be arbitrarily arrested 
or detained; that no man shall be tried or condemned 
without due process of law, that the domicile is invio- 
lable; that the right to property is inviolable and con- 
fiscation illegal; that taxation must be equally imposed, 
and that the taking of property by eminent domain must 
be for a public purpose and with due compensation; that 
thought and speech and conscience shall be free; that 
rehgion shall be free, but with an estabHshed Church as 
the recommended rehgion; that association for all lawful 
purposes shall be free; that peaceable assembly for peti- 
tioning the Government or for any other lawful purposes 
shall be free; and that the press shall not be subject to 
any censorship, but responsible through the ordinary and 
lawful procedure for libel of private character. Some of 
the Constitutions go further than this and secure to the 
Individual freedom of migration, immigration, and emigra- 
tion and of industry and occupation. 

So far, then, as the second element in the solution of 
the problem of the reconcihation of Government with 
Liberty is concerned, viz.: a well-defined and dehmited 
realm of Individual Immunity against governmental power, 
we may say that the Constitutions of all the South Ameri- 
can states fairly fulfil the requirement. 

When, however, we come to the final element of the 
problem, we find more difficulty in reaching any satis- 
factory conclusions. As we have already seen, the two 
points to be considered in this connection are the general 



THE EFFORT OF AMERICA 331 

structure of the Government and the position and power 
of the Judiciary. 

First, then, as to the structure of the Government. 
Three of the ten South American states, viz.: Argentina, 
Brazil, and Venezuela, have federal systems of Govern- 
ment, after the model, in chief respect, of the United States 
of North America; that is, on the principle that the cen- 
tral Government is one of enumerated powers, and the 
States of the Union possess residuary powers, under the 
limitations that they may exercise no powers granted ex- 
clusively to the General Government or forbidden them 
in behalf of the Immunity of the Individual against gov- 
ernmental power. The three South American federal sys- 
tems vest, however, larger powers of legislation in the 
Congress, the Legislature of the central Government, than 
does the system of the great North American Republic, 
in that the commercial and criminal codes are, by au- 
thority of the Constitutions of these three South Ameri- 
can states, national Statutes. Until recently this would 
not have been regarded as favorable to Individual Lib- 
erty, but the most modern political thought and experi- 
ence now seem to take the opposite view. The national 
opinion upon these subjects seems now to be regarded as 
favoring a larger Individual Liberty than the local opinion, 
and when we remember that in our own experience it was 
the local law which tolerated slavery and the national law 
which abolished it, there seems some reason for this change 
of opinion. However this may be, we can safely affirm 
that the federal system of Government is generally more 
favorable to Individual Liberty than the centralized sys- 
tem. In the distribution of governmental power between 
the central Government and the States of the Union in 
these systems, there is less danger of governmental abso- 



332 GOVERNMENT AND LIBERTY 

lutism, in that the sovereign power making this distribu- 
tion must be kept in more distinct and independent or- 
ganization than is apt to be the case in systems of cen- 
tralized Government. And it is just this independent 
organization of the sovereign power back of all Govern- 
ment, which, as we have seen, is the primal condi- 
tion of a real Individual Immunity against governmental 
power. 

In all of the South American governmental systems, 
whether federal or centrahzed, the powers of Government 
are distributed between the Legislature, Executive, and 
Judiciary, according to their nature, and a greater or less 
independence between the departments is constitutionally 
maintained. There are no Parhamentary Governments in 
South America. All of them are what may be termed, 
from this point of view. Presidential departmental Gov- 
ernments, the so-called check-and-balance system. Never- 
theless, as we shall see in looking into these systems a 
little more closely, there is more tendency manifest in 
the direction of Parliamentarism, theoretically at least, 
than in the North American system. 

In all of these Governments, except only those of Brazil 
and Uruguay, not only is mention made in the Constitu- 
tion of Ministers of State and a Ministry and the method 
of their appointment and the necessary qualifications for 
appointment prescribed, but the Ministers are constitu- 
tionally allowed seat and voice, but not vote, in the legis- 
lative Chambers and are made solidly as well as sepa- 
rately responsible for their acts. This responsibility is in 
all these cases enforced by impeachment brought by the 
Lower House of the Legislature and decreed by the Sen- 
ate, and in Ecuador and Venezuela a mere vote of censure 
by the Chamber of Deputies is sufl&cient to remove the 



THE EFFORT OF AMERICA 333 

Ministry as a whole. This is certainly, in these two cases 
at least, quite an approach to Parliamentarism. 

In Brazil and Uruguay, on the other hand, the check- 
and-balance system is preserved, theoretically at least, in 
full vigor. The Ministers have neither seat, voice, nor 
vote in the Chambers and the only method of deposing 
them is by individual impeachment or by a regular judi- 
cial procedure. Only these two states of South America 
preserve, by their constitutional law, the full benefit of 
the check-and-balance system in impeding Government 
from encroaching upon the constitutional domain of In- 
dividual Liberty. The rest provide a somewhat easier 
co-operation of the governmental branches and admit 
at least a somewhat more probable combination of them 
over against that domain of Individual Liberty. 

Moreover, the Constitutions of all the South American 
states, except only that of Venezuela, vest the veto power 
over legislative acts in the President, or chief Executive, 
which may indeed be overcome by the Legislature through 
repetition of the passage of the Act, by two-thirds ma- 
jority in the cases of Argentina, Brazil, Colombia, ChiU, 
and Paraguay, or by simple majority only in the cases 
of Bolivia, Ecuador, Peru, and Uruguay. Here is again, 
of course, a certain possible check upon legislation hostile 
to Individual Liberty. It is not, however, very reliable. 

So much for the relation of the organs of Government 
to each other in the employment of their functions. Let 
us now examine briefly the construction of the organs of 
Government and see if we find in the same any further 
protection, direct or indirect, for the sphere of Individual 
Liberty. 

In all the South American states the bicameral system 
of the Legislature prevails, generally, and, with consid- 



334 GOVERNMENT AND LIBERTY 

erable length of term. One of the ten, Peru, has a six 
years' term for the Deputies; five, Argentina, Bolivia, 
Colombia, Paraguay, and Venezuela, have a four years' 
term; three, Brazil, Chili, and Uruguay, have a three 
years' term, and one, Ecuador has a two years' term. For 
the members of the Senate two, Argentina and Brazil, 
have a nine years' term; six, Bolivia, Colombia, Chili, 
Paraguay, Peru, and Uruguay, have a six years' term, and 
two, Ecuador and Venezuela, have a four years' term. 
Generally, the change of members in the Deputy Cham- 
bers is total, except that in Argentina and Paraguay the 
change is by halves, and in Peru by thirds. On the other 
hand, the change in the membership of the Senate is grad- 
ual in all cases, except Ecuador and Venezuela, and this 
gradual change in all cases, except that of ChiH, is by 
thirds. In ChiH it is by halves. Moreover, some of these 
states require of the members of the Legislature or of one 
House thereof a property qualification. BoHvia, Chili, 
Peru, and Uruguay require it for the members of both 
Houses. Colombia requires it for the members of the 
Senate only. 

Now, all of these constitutional requirements are usu- 
ally considered as being favorable to Liberty. The prob- 
abilities are certainly on that side. From probabiHty to 
certainty is, however, a step, short or long, where other 
conditions may bring unexpected results. 

There are, on the other hand, certain other provisions 
prescribing the relation between the Houses in the course 
of legislative action which point rather in the other di- 
rection. For example, only the states of Ecuador and 
Peru accord equal powers of initiating and enacting legis- 
lation upon all subjects to the two Chambers. All the 
others vest the power of initiating revenue measures in 



THE EFFORT OF AMERICA 335 

the House of Deputies exclusively; and the states of Ar- 
gentina, Bolivia, Brazil, ChiU, and Paraguay also confer 
upon this House alone the initiation of bills for the re- 
cruiting of the Army. 

Moreover, the most of these states make Constitutional 
provision whereby one Chamber of the Legislature may 
finally overcome the opposition of the other. For example, 
the Argentine Constitution ordains that a bill originating 
in one House and changed or amended by the other, which 
changes or amendments are then rejected by the Chamber 
originating the bill, becomes law in the amended form 
when voted by the revising Chamber by a two-thirds ma- 
jority unless rejected finally by the originating Chamber 
by two-thirds majority. The Brazilian Constitution makes 
the same provision, also that of Paraguay. The Consti- 
tution of BoUvia ordains that a bill originating in one 
Chamber and rejected in toto by the other becomes law 
when voted by the originating Chamber by a two-thirds 
majority unless finally rejected by the other Chamber by 
a two-thirds majority, and that when the two Chambers 
cannot separately agree upon amendments offered to the 
bill, they shall meet in joint assembly and arrive at a 
decision in this maimer. The Constitution of Chili makes 
the same provision regarding the passage of a measure 
in toto as that of BoHvia and regarding the passage of 
an amended bill as those of Argentina, Brazil, and Paraguay. 
The Constitution of the state of Uruguay ordains that 
when the two Chambers cannot agree upon a bill origi- 
nating in either, they shall meet in joint assembly and pass 
the bill by a two-tliirds majority in the joint assembly, 
otherwise the bill will fail; and finally the Constitution 
of the state of Venezuela provides that in case of conflict 
between the two Chambers over a bill originating in either, 



336 GOVERNMENT AND LIBERTY 

the originating Chamber may invite the other chamber to 
a joint sitting, but the Constitution does not compel the 
acceptance of the invitation. Only three of these states, 
viz.: Colombia, Ecuador, and Peru, do not constitution- 
ally empower one Chamber of the Legislature to overcome 
the opposition of the other Chamber to a bill which it 
may originate. Now the states which do make such pro- 
vision in their Constitutions probably facilitate thereby 
legislative action and this increased facility of action has, 
generally, a tendency to expand Government at the ex- 
pense of Individual Immunity against governmental power. 
Finally, the method of electing the Executive and the 
members of the legislative Chambers deserves Httle con- 
sideration from the point of view of our problem. Bo- 
livia, Brazil, Ecuador, and Peru elect them all by direct 
vote of the holders of the suflfrage and the suffrage is 
generally manhood suffrage, quaUfied in most cases by 
the ability to read and write. Argentina elects the Presi- 
dent indirectly, the members of the Senate through the 
State Legislatures and the Deputies by the direct choice 
of the voters. Chili and Paraguay elect the President in- 
directly and the members of both legislative Chambers 
directly. Colombia elects the President and the Depu- 
ties directly and the members of the Senate indirectly. 
Uruguay elects the Deputies directly, the Senators indi- 
rectly, and the President by vote of the Legislature in 
joint session, while Venezuela elects the Deputies by 
the direct vote of the holders of the suffrage, the Sena- 
tors by vote of the State Legislatures, and the President 
by vote of the two legislative Houses of the Union in 
joint assembly. By a cursory review of these brief state- 
ments, we may conclude that the electoral methods of 
Argentina, Uruguay, and Venezuela are probably more fa- 



THE EFFORT OF AMERICA 337 

vorable to governmental conservatism and to Individual 
Liberty than those of the others. 

We come, in conclusion, to the real test of effective 
protection for the Immunities of the Individual against 
the power of the Government, viz. : the position and power 
of the Judiciary. The Argentine state creates its Supreme 
Judicial Tribunal by the Constitution and commands 
through the Constitution that its members shall be ap- 
pointed by the President with the approval of the Senate, 
shall hold their offices for life or during good behavior, 
shaU be paid salaries fijied in the first place by Statute 
but undiminishable thereafter, and shaU have power to 
determine all cases involving the constitutionality of acts 
of the Legislature as well as those of the Executive branch 
of the Government. Brazil makes the same constitu- 
tional provisions in all these respects. Likewise, Colom- 
bia, which also provides that when the President vetoes 
a measure sent to him from the legislative Chambers on 
the claim that it is unconstitutional, it must be referred 
to the Supreme Judicial Tribunal for its opinion, and if 
this Tribunal pronounces the proposed law to be in con- 
flict with the organic law, it must be regarded as null and 
void. Peru makes the same constitutional provisions upon 
this subject as Argentina and Brazil, except that it re- 
quires the approval by both Houses of the Legislature in 
joint session of the nominations made by the President 
to the Judicial offices. Uruguay makes similar constitu- 
tional provisions upon the subject, only the choice of 
the Supreme Judges in the joint assembly of the two legis- 
lative Chambers is more in the nature of an election than 
of an approval of appointment. Venezuela must be classed 
with Uruguay in its constitutional arrangements concern- 
ing the Judiciary in all respects but one and that is that 



338 GOVERNMENT AND LIBERTY 

this state accords only a six years' term to the Supreme 
Judges. 

The other four States, viz.: Bolivia, Chili, Ecuador, 
and Paraguay, do not vest through their Constitutions 
the Judicial Tribunals with the power to nulUfy legisla- 
tive acts which appear to them to conflict with the con- 
stitutional Immunities of the Individual against govern- 
mental power. All of them except Chih subordinate the 
Judiciary to the Legislature both as to tenure, term, and 
powers. Chili gives the Judges by constitutional provi- 
sion the tenure of appointment by the President on nomi- 
nation by the Privy Council and a life term. 

If now we review briefly all the points of our statements, 
we must conclude that, so far as constitutional institu- 
tions and arrangements are concerned, the six South 
American states, viz.: Argentina, Brazil, Colombia, Peru, 
Uruguay, and Venezuela, have, from the point of view of 
our problem of the reconciliation of Government with 
Liberty, made some considerable advance over the Eu- 
ropean States. All of the six have made the declaration 
of the Individual Immunities against governmental power 
a part, a most important part, of their constitutional law, 
and have created the Judicial tribunals by Constitutional 
law and vested them with the power to protect the realm 
of Individual Immunity against encroachment by any 
branch or all branches of the Government. This has not 
been done by any European state. 

Moreover, these sLx South American states have so 
fashioned their governmental machinery, especially in the 
relation of its branches to each other, as to avoid to a 
higher degree than in the European states the tendency 
to Autocracy on the one side or Parliamentary absolutism 
on the other. If they appear to lag behind the European 



THE EFFORT OF AMERICA 339 

states in their general political civilization, it must not 
be attributed to the theory of their pubhc law, but to the 
character of their populations. The Indian, the Negro, 
and the Mestizo form the greater part of them every- 
where, except in the Argentine Republic. The force, 
therefore, to work this good machinery is what is wanting. 
When we come, finally, to compare the Constitutions of 
these six states with each other, we find that only one 
of them contains all the factors for a satisfactory solution 
of our problem, viz. : the organized continuing sovereignty 
back of, separate from, and supreme over the Government, 
the full declaration of the constitutional Immunities of 
the Individual against all governmental power, the bal- 
ance of the governmental machinery in so far as to pre- 
vent Autocracy on the one side or Parliamentary absolu- 
tism on the other, and the constitutional Judiciary, per- 
manent and non-poHtical, and vested with the power to 
protect the constitutional Immunities of the Individual 
against governmental encroachments by any and every 
branch of the Government. That one is the Argentine 
Republic. Happily, this is the very state which contains 
the population which is capable of producing the force 
necessary to work to advantage this excellent machinery 
created by its Constitution. The Argentine Republic is, 
therefore, the light and the hope of South America in 
the solution of the world problem of the reconciHation of 
Government with Liberty. 



CHAPTER III 

MEXICO AND CENTRAL AMERICA 

On account of territorial extent, population, proximity 
to the United States of North America, and more elabo- 
rate Constitution, we will consider Mexico apart from the 
states of Central America. After suffering untold vicis- 
situdes, subsequent to the attainment of her independence 
from Spain, through internal unrest and unsettled relations 
to the United States of the North, Mexico finally suc- 
ceeded in framing and adopting, in the year 1857, ^ Con- 
stitution which contains all the essential parts of a genuine 
Constitution from the point of view of our problem. 

In the first place, this Constitution was originally es- 
tablished by a National Constitutional Convention, that is, 
by a sovereign power organized separate from, indepen- 
dent of, and supreme over, all Government, which pro- 
vided in the Constitution a continuing organization of the 
sovereignty of the Nation for future change in the organic 
law. This continuing organization, however, while dis- 
tinguished in the mode of its procedure from the ordinary 
operations of Government, is compounded, so to speak, 
of the ordinary governmental organs. Constitutional 
changes must be made through initiation by the ordinary 
legislative department of the General Government, the 
Congress, and ratified by the Legislatures of a majority 
of the States of the Union. Ordinary law is thus made 
by the separate acts of the Congress and the Legislature 
of each State of the Union and constitutional law by the 

340 



THE EFFORT OF AMERICA 341 

combined act of the Congress and the Legislatures of a 
majority of the States of the Union. This is sufficient 
to distinguish the one kind of law from the other, but 
it does not fulfil the requirements of separate organi- 
zation of the sovereignty from the organs of ordinary 
Government and of commanding power over them. 

As to the second factor in the solution of our problem, 
viz.: the domain of Individual Immunity against govern- 
mental power, this Constitution is more satisfactory. It 
contains the usual Bill of Rights in sufiicient fullness. 
It declares the freedom and equality of all men, the in- 
violability of property and of the home, and requires due 
process of law and the equal protection of the law in 
every legal limitation imposed upon the individual right 
to life, liberty, and the ownership and enjoyment of prop- 
erty. It declares furthermore, that there shall be no con- 
fiscation of property by Government either directly or 
through unlimited taxation or through the exercise of the 
power of eminent domain otherwise than for a public pur- 
pose and with just and adequate compensation. It or- 
dains the freedom of industrial pursuit, of migration, of 
religion, of speech, of education, and of the press, the 
right of peaceable assembly and of petition to the Govern- 
ment for redress of grievances and the right of associa- 
tion for all legal purposes. It forbids torture, imprison- 
ment for debt, and all retroactive law, and guarantees to 
the people the right to keep and bear arms for their de- 
fense. In all this the Mexican Constitution is about as 
complete an instrument of public law as exists anywhere 
to-day. 

When we come, in the third place, to consider the means 
constructed by the Constitution for the defense of this 
realm of Individual Immunity against governmental power, 



342 GOVERNMENT AND LIBERTY 

we have again to concede the completeness in principle 
of the Mexican instrument. It establishes the Federal 
system of Government. It adopts the principle of the 
separation of powers, both as to tenure and procedure. 
The President is elected indirectly by the voters. The 
members of the Chamber of Deputies are elected directly 
by the voters, and those of the Senate indirectly. The 
President and the Secretaries of his Cabinet, appointed 
and removed by him at pleasure, are responsible for offi- 
cial crime and misdemeanor only by way of impeachment 
brought by the Chamber of Deputies and judged by the 
Senate. The President enjoys with the Houses of the 
Congress and the Legislatures of the States of the Union 
the right to initiate bills in Congress, and, while the Presi- 
dent may veto any bill passed by Congress, his veto may 
be overcome by simple repassage of the measure by the 
two Chambers. Moreover, while the Chamber of Depu- 
ties has the privilege of considering first all bills concern- 
ing the budget and the recruitment of the Army introduced 
on its own initiative or that of the President, neither 
Chamber is accorded the power to overcome the opposi- 
tion of the other. There is thus, in principle at least, in 
periods of peace, quite full provisions against Autocracy 
on the one side and Parliamentary Absolutism on the 
other. All these constitutional provisions relative to the 
structure of the Government certainly tend to restrain 
Government from encroaching upon the domain of In- 
dividual Immunity. 

Finally, the provisions creating the Judiciary and vest- 
ing these tribunals with their vast powers in defense of 
the sphere of Liberty place the capstone upon the struc- 
ture from the point of view of our problem. The mem- 
bers of the Supreme Court are made entirely independent 



THE EFFORT OF AMERICA 343 

of the other branches of the Government in the origin 
of their tenure. They are elected indirectly by the voters. 
But it must be conceded that they are not made suffi- 
ciently independent of the voters. Their terms are only 
for six years. Their salaries, once fixed by Congress, can- 
not be reduced, but they are subject to impeachment for 
crime and misdemeanor in office. The Judicial tribunals 
are, however, vested by the Constitution with the power 
to declare any act of the central Government or of the 
States of the Union, whether executive or legislative, null 
and void which, in their opinion, conflicts with the con- 
stitutional Immunities of the Individual, or any act of the 
central Government which, in their opinion, confficts with 
the constitutional powers of the States of the Union, or 
any act of a State of the Union which, in their opinion, 
confficts with the constitutional powers of the central 
Government. This is all full and explicit and it would 
seem to cover most of the points required in the solution 
of our problem. 

Briefly surve3ang, now, all that has been presented, we 
must concede that, while this Constitution is defective in 
regard to the first requirement for the successful solution 
of our problem, viz.: the requirement of a continuing 
organization of the sovereign power separate from, and 
supreme over, the Government, a requirement seldom, if 
ever, in the course of our review satisfactorily met, it con- 
tains, on the contrary, the other necessary provisions in 
some considerable degree of perfection. 

Why, then, we naturally ask, with this well-thought- 
out, well-balanced, and well-constructed instrument of her 
public law is Mexico the scene of so much despotism at 
one time and anarchy at another or so much despotism 
in one place and at the same time so much anarchy in 



344 GOVERNMENT AND LIBERTY 

another? Some of the publicists have pointed to the fact 
that the Government is expressly empowered by the Con- 
stitution to suspend all these declarations and guarantees 
of Liberty during war, insurrection, and public danger. 
But in every political system, constitutional or not, this 
is either expressed or understood. It is quite possible 
that when this power of suspension is expressed, the 
Government may be more ready, if not more hasty, in 
making use of it than when it is understood. There 
would seem to be a more serious responsibility connected 
with the use of an implied power than with the use of an 
expressed power. At least, it is probable that most men 
would so feel it. 

But I cannot consider a so relatively unimportant dis- 
tinction as this to be the chief cause of the poor success 
of Mexico in working out her political civilization under 
such an excellent instrument of public law. I consider 
that the explanation of this misfit is to be attributed 
almost wholly to the character of the people and to the 
manner in which the Mexican state was originally con- 
structed. The ethnologists calculate that not over twenty 
per cent of the population belong to the white race, while 
eighty per cent at least are Indian and mixed, in nearly 
equal numbers. Connect with this ethnological condition 
the fact that the Mexican state was originally constructed 
by the imposition, through military force, of the sovereignty 
of the white race upon the Indian race and that the domi- 
nation of the white race has been legitimized by the moral 
and religious power of the Roman Christian Church, and 
you have, it seems to me, the clew to the explanation. 
The system of a democratic Republic is not fitted for such 
a situation, or, rather, such a situation is not adjustable to 
a democratic Republic. The amalgamation of the white 



THE EFFORT OF AMERICA 345 

man and the Indian has produced a mixed race of consid- 
erable intellectual as well as physical strength. The strug- 
gle of this mixed race to throw off the sovereignty of the 
white man, on the one side, and to dominate the pure 
Indian, on the other, has made Mexico a land of revolutions 
and rebellions and has kept it oscillating between autocracy 
and anarchy. It will still be decades, perhaps centuries, 
before its population can develop that necessary consen- 
sus of opinion concerning rights and wrongs and that nec- 
essary steadiness in upholding the same which are funda- 
mentally essential to the successful operation of that excel- 
lent Constitution under which Mexico only nominally lives. 

The six states of Central America, viz.: Costa Rica, 
Guatemala, Honduras, Nicaragua, Panama, and Salvador, 
while offering some pecuHarities when contrasted with the 
other American states, have less to contribute to the solu- 
tion of our problem. All of them except the parvenu 
state of Panama were, before 1839, members of the Con- 
federation of Central America, and the Constitutions of 
most of them make provision for, or at least mention of, 
a return to that condition or perhaps to the condition of 
a more perfect Union. 

All of them, having been brought into existence by pop- 
ular revolution, present Constitutions originally framed 
and adopted by Constituent Conventions separate from, 
and supreme over, any Government. In this respect, 
therefore, they all fulfil one requirement for the solution 
of our problem. In the constitutional provision for sub- 
sequent change of the organic law all of them, except 
only Panama, require the formation of, and action by, a 
Constituent Assembly. Panama allows constitutional 
amendment by vote of two Legislatures, the latter by a two- 
thirds majority of its members. In all cases, however, it is 



346 GOVERNMENT AND LIBERTY 

the ordinary Legislature which initiates the change ac- 
cording to its own discretion. All fall short, therefore, 
of satisfying the requirements of a continuing sovereign 
organized separate from, and commanding over, the 
Government. 

On the other hand, every one of them has provided by 
constitutional law a realm of Individual Immunity against 
governmental power fairly well defined and delimited, 
containing the usual declarations of equality before the 
law, of freedom from arbitrary arrest and detention, of 
inviolability of property, of forbiddance of confiscation 
by limitation upon taxation and upon the exercise of emi- 
nent domain, of freedom of religion, of speech, and the 
press, of the right of assembly and petition to Govern- 
ment and of association for all legal purposes, and re- 
quiring that every act of Government touching this realm 
at any point shall follow due process of law constitution- 
ally ascertained. It must be conceded that even these 
insignificant states have, as almost all the other states 
of the modern world, fairly well stated in their Constitu- 
tions the elements of Individual Liberty and Immunity 
against the powers of Government. 

But when we come to the crucial test, to the inquiry 
for the means provided for protecting these Immunities 
against attempted encroachment by Government, we find 
the most of them lamentably lacking. This is not ap- 
parent in the relation of the Legislature to the Executive. 
The Constitutions of all of these states contain the prin- 
ciple of the separation of powers and the independence, 
under co-ordination, of the departments of Government. 
The President is in every case but one, Costa Rica, elected 
directly by the voters. In Costa Rica he is elected indi- 
rectly. The same voters elect the members of the Legis- 



THE EFFORT OF AMERICA 347 

lature. The President and his Ministers are responsible 
for crimes and misdemeanors in office. They may be 
impeached by the Legislature, and since, as we shall see, 
the Legislatures of all these states are unicameral, they 
are judged in every case but one by a Judicial tribunal. 
The exception is the case of Panama, whose Constitution 
provides that the Legislative body may try upon its own 
accusation. The President has also the power both of 
initiating and vetoing measures. The legislative Chamber 
may, in all cases, reject his propositions and may over- 
come his veto by repassage of any vetoed measure by 
a majority of two-thirds of the members. Thus far the 
principle of these Constitutions as to the structure of the 
government is the check-and-balance system. 

When, however, we come to the structure of the Legis- 
lature, we find, as above indicated, that the unicameral 
system prevails exclusively. The want of a twofold con- 
sideration for every project of law is, of course, generally 
unfavorable to the maintenance of the balance between 
Government and Liberty, especially when, in some cases, 
the President has no veto at all upon the budget bill. 
The radicalness of this legislative structure is, it is true, 
in some instances, as in the case of Nicaragua, somewhat 
modified by the length of term of the members of the 
legislative Chamber and by the gradual change of mem- 
bership in that body, the term being, in this case, for six 
years and the change by thirds. 

It is, however, when tried by the most crucial test that 
we find the Constitutions of these states most lacking 
from the point of view of our problem. The Courts are 
composed of Judges chosen in every case, except that of 
Panama, either by the voters or the Legislature, generally 
by the Legislature. Moreover, the terms exceed in no 



348 GOVERNMENT AND LIBERTY 

case six years, generally not more than four years. They 
are thus not protected against the Legislature in the main- 
tenance of Judicial independence. 

Finally, in no case, except that of Nicaragua and that 
of Panama, are the Judicial tribunals authorized to nullify 
a legislative act, which in their opinion conflicts with the 
constitutional Immunities of the Individual. The Con- 
stitution of Nicaragua vests this power in the Courts 
whenever the question may judicially arise, and the Con- 
stitution of Panama requires that, when the President 
vetoes any bill sent to him by the Legislature on the 
ground of its unconstitutionality as alleged by him, the 
measure shall be submitted to the Supreme Judicial body 
for its opinion, and that, if this body sustains the Presi- 
dent's contention, the bill shall fail. 

But while the constitutional institutions and methods 
of these states leave much to be desired from the point 
of view of our problem, it is not this which presents the 
main failing. It is again, as in South America and Mex- 
ico, the character of the population — I will not say people, 
because this word denotes a population further advanced 
in political civilization than exists in any of them. All 
six of them contain a population of less than six milHons 
of persons, of whom ninety per cent at least are Indians, 
Negroes, and Mestizos. Constant revolutions and rebel- 
lions and constant interference by foreign powers render 
it impossible for these miniature states to contribute any- 
thing to the solution of our problem. Their Constitu- 
tions were given them by the handful of white men who 
dominate in each, and, while from a theoretical point of 
view these instruments are not without considerable merit, 
yet they give us no test of the character of the great mass 
of the population and they are misfits in every case. 



CHAPTER IV 

THE STATES OF THE WEST INDIAN ARCHIPELAGO 

Coming finally to the three states of the West Indian 
Archipelago, Cuba, Hayti, and Santo Domingo, we find 
some advance over those whose constitutional and political 
conditions we have just considered. But this advance 
is chiefly in the instruments of constitutional law which 
have been made for them directly or indirectly by outside 
forces. 

Of the three, naturally the Constitution of Cuba is the 
most perfect and gives more satisfactory answers to the 
requirements of our problem. 

In the first place, this Constitution was framed and 
adopted by a Constituent Assembly separate from, and 
supreme over, any part and all parts of the Government. 

In the second place, the sovereign power for changing 
the organic law, as provided in the Constitution, is Hke- 
wise in its organization separate from, and supreme over, 
the Government. It is a Constituent Convention. But 
this Convention must be called by a governmental act 
and it has no power to initiate a constitutional change. 
This power belongs solely to the ordinary Legislature by 
a two-thirds vote in each Chamber. 

In the third place, the Cuban Constitution contains 
the declaration, in full measure, of the Immunities of the 
Individual against the powers of Government. These 
have been so often mentioned in detail that they do not 
need to be repeated here. 

349 



3SO GOVERNMENT AND LIBERTY 

In the fourth place, the construction of the Govern- 
ment on the check-and-balance principle, the universal 
American principle, furnishes a certain probable protec- 
tion of this domain of Individual Immunity against gov- 
ernmental encroachment. The President is chosen by the 
voters through electors for a term of four years. He ap- 
points and dismisses at pleasure the members of his Cabi- 
net. He and they are subject to impeachment instituted 
by the Chamber of Deputies and tried by the Senate. He 
has no power to initiate law save by way of a message to 
Congress, except in proposing the budget, but he can veto 
bills passed by the two Houses of the Legislature and this 
veto can be overcome only by a two-thirds vote in each 
House. The Legislature consists of two Chambers, the 
members of one elected directly by the voters, changing 
totally, and having a term of four years, the members of 
the other elected by the Councillors of each province in 
assembly with an equal number of adjuncts chosen by the 
voters, changing by halves, and having a term of eight 
years, and each Chamber having equal power in the in- 
itiation and enactment of law. 

Finally, the Constitution provides for a Judiciary in 
which the Judges of the Supreme Court shall be appointed 
by the President, by and with the consent of the Senate, 
with life terms, and an irreducible salary, and vests in 
this supreme tribunal the power to nuUify legislative acts 
as well as executive acts when coming into conflict with 
the Constitution, especially those provisions of it which 
protect the constitutional Immunities of the Individual 
against the encroachments of governmental power. 

The independence of Cuba and this Constitution are 
virtually under the protectorate of the United States of 
North America, not only against foreign aggression, but 



THE EFFORT OF AMERICA 351 

against the Cubans themselves. It is, therefore, not ex- 
actly correct to denominate Cuba a sovereign state. Its 
geographical and strategic position across the entrance to 
the Gulf of Mexico makes it necessary that its relation 
to foreign powers especially should be under the control, 
in greater or less degree, of the United States. 

When compared with this Constitution, created in close 
imitation of that of the United States, the Constitutions 
of the other West Indian states appear quite faulty. They 
are two in number and occupy the island just east of Cuba 
in unequal parts, the territory of the state of Hayti amount- 
ing to some ten thousand square miles and that of Santo 
Domingo to some twenty thousand. 

The Haitian Constitution of 1887 manifests the influ- 
ence of the present French instrument. It was created 
by a Constituent Convention separate from, and supreme 
over, the Government; but the amendment of the same 
is effected by means of a proposition passed in the ordi- 
nary way for enacting Statutes by the ordinary legisla- 
tive Houses and approved by the two Houses in joint 
assembly elected immediately after the passage of the 
proposition. The distinction, thus, between the sov- 
ereign power and the legislative branch of the Govern- 
ment is, as to the membership of each, entirely lacking. 
Nor is the method of procedure entirely distinct, the orig- 
ination of the proposition following the method of enact- 
ing ordinary Statute law. 

This Constitution contains, however, a very complete 
Bill of Rights or Immunities, in which all of the usual 
points are fully elaborated, and which need not be cited 
here in detail, since they have been so often enumerated. 

It is, as usual, when we come to consider the means 
provided for the protection and maintenance of these Im- 



352 GOVERNMENT AND LIBERTY 

munities that we find the least assistance in the satisfac- 
tory solution of our problem. 

Regarding, first, the construction of the Haitian Gov- 
ernment and the relation of its parts, we find that the 
Executive, the President, derives his tenure from the 
Legislature, which in joint assembly of the two Houses 
elects him by a two-thirds majority vote, and that he 
with his Secretaries of the administrative departments is 
responsible to the Legislature by way of impeachment 
initiated by the Lower Chamber and tried by the Senate. 
He is vested with the power both of initiating bills and 
of vetoing the acts of the Chambers, and, for defending 
the bills which he may initiate and also his vetoes, he 
may send his Secretaries into the Chambers and demand 
that they be heard, but his veto may be overcome by a 
two-thirds majority vote in each Chamber. Moreover, 
while the Legislature is constructed on the bicameral 
principle and the two Houses have parity of powers in 
legislation, except that the financial measures must either 
originate in or be considered first by the Lower House, 
the Commons, the members of the Senate are chosen by 
the Lower House, which exercises thus an indirect control 
over the acts of the Upper House. 

Finally, while the High Courts are created by the Con- 
stitution and the Judges of these Courts are appointed by 
the President and hold during good behavior, i. e., for 
life, and enjoy salaries fijced by law and have the power 
of refusing to apply any unconstitutional act, the Con- 
stitution expressly declares that the final authoritative 
interpretation of all law belongs to the Legislature alone. 

Thus neither in the check-and-balance system of the 
two political branches of the Government nor in the 
powers of the non-political branch, the Judiciary, do we 



THE EFFORT OF AMERICA 353 

find any sufficient defense of the pompous declaration of 
Rights and Immunities against the encroachments of gov- 
ernmental power. 

The Constitution, lastly, of Santo Domingo is even less 
satisfactory in the answer it gives to the queries of our 
problem. 

It was, it is true, originally formed and adopted by a 
Constituent Convention entirely separate from, and su- 
preme over, the governmental organs and the powers con- 
ferred by it upon them; but the sovereign power as or- 
ganized by and in the Constitution for all subsequent 
changes of the organic law is confounded with the Legis- 
lature. It is simply the Legislature acting by a two-thirds 
majority vote. 

On the other hand, the Constitution contains a com- 
plete declaration of Rights and Immunities for the Indi- 
vidual against governmental power, the details of which 
I will again pass over since they have been so often re- 
cited in the course of this work. 

The construction of the Government is probably more 
favorable to the protection of this realm of Individual 
Immunity against its own encroachments upon it than 
in the case just preceding, the case of Hayti. In the 
first place, the Executive, the President, does not derive 
his tenure from the Legislature, as the Haitian President 
does, but is elected by electors chosen by the voters for 
this purpose, and has a long term, six years. His respon- 
sibility, with that of his Secretaries of State, is enforced 
by arraignment before, and trial by, the Supreme Judicial 
body. He also has the power of initiating bills and of 
vetoing bills passed by the two Chambers, which veto can 
be overcome only by a two- thirds majority vote in each 



354 GOVERNMENT AND LIBERTY 

House of the Legislature. This is a much more inde- 
pendent position than that occupied by the Haitian Presi- 
dent, and enables him to check much more successfully 
the movements of the Legislature toward Parliamentary 
absolutism. The Legislature is composed of two Houses 
and the principle of the bicameral system is further main- 
tained by according substantial parity of powers to the 
two Chambers, both in the initiation and passage of proj- 
ects of law. 

The protection ofifered by the construction of the po- 
litical departments of the Government, the Legislature, 
and the Executive, to Individual Liberty is only a prob- 
able one at the best, and depends upon the wisdom and 
moderation of these bodies instead of upon any consti- 
tutional restrictions. 

The position and powers of the Judiciary furnish, as 
we all know, the real test; and in this respect the Domin- 
ican Constitution is greatly lacking from the point of view 
of our problem. The Judges of the Supreme Court are 
elected by the Legislature, hold for a very short term, 
four years, and the Court is not clearly vested with any 
power to protect the constitutional Immunities of the In- 
dividual against governmental encroachment. The Consti- 
tution, it is true, forbids the enactment of any law in conflict 
with its own provisions and vests the Supreme Court with 
the power to determine which law governs a case when more 
than one law appears to be involved in it. A determined 
Court sustained by a judicially minded people might make 
out of this the power of the Court to determine the con- 
stitutionality of legislative acts and nullify such as, in its 
opinion, conflict with the provisions of the Constitution, 
but such a Court and such a people do not exist in the 
state of Santo Domingo. 



THE EFFORT OF AMERICA 355 

We must, therefore, turn away with disappointment 
from the consideration of this state, not so great indeed 
as in many other cases, since we did not expect to ob- 
tain much help from it in the solution of our problem. 
It presents neither stable Government nor protected 
Liberty. 

When, now, we compare the Constitutions of South and 
Central America, Mexico, and the West Indian Archipel- 
ago with those of the European states, we must concede 
from the point of view of our problem that they are more 
complete and contain fuller and more satisfactory answers 
to our inquiries. They were all drafted by Spanish or 
Portuguese scholars and based by them upon the political 
philosophy of the French Revolution. They are almost 
all of them excellent instruments from a theoretical or 
philosophical standpoint. Why, then, are the results of 
the efforts to apply them so unsatisfactory? Why is the 
history of these states in so great measure the record 
of alternations between anarchy and despotism instead of 
steady progress in the reconcihation of Government and 
Liberty? We must look to the character of the popula- 
tion — I will not say "people" — of each of them for the 
explanation. 

We are in the habit of calling these populations Latin- 
Americans and of attributing to them the political psy- 
chology of the Latin races of Europe. But with the ex- 
ception of the inhabitants of Argentina, Chili, Cuba, and 
Uruguay there is not a predominant Latin population in 
all the Americas south of the United States of North 
America, and the inhabitants of Chili, Cuba, and Uru- 
guay can be termed such only when we concede that the 
Spaniards and Spanish Creoles are Latins, which is not 
now generally acknowledged by the ethnologists. 



3S6 GOVERNMENT AND LIBERTY 

Brazil has a population of 24,000,000, not 20 per cent of 
which belong to the white race. Full 80 per cent are In- 
dians, Negroes, and Mestizos. BoUvia has a population 
of some 2,000,000, of which hardly 12 per cent are white. 
The rest are Indians and Mestizos. Colombia has a pop- 
ulation of about 6,000,000, not 20 per cent of which are 
white. The rest are Indians and Mestizos. Ecuador con- 
tains about 1,250,000 inhabitants, almost all of whom are 
Indians and Mestizos. Paraguay has less than 1,000,000 
inhabitants, nine-tenths of whom are Indians, Negroes, 
and Mestizos. Peru with some 3,000,000 inhabitants has 
probably 10 per cent of whites. Venezuela with about 
the same population as Peru is in about the same condi- 
tion ethnologically. The six Central American states 
covering something over 200,000 square miles of terri- 
tory, inhabited by less than 6,000,000 persons, contain, in 
no case, a white population of over 20 per cent of the 
whole. The same is true of Mexico. While of the three 
West Indian states inhabited by something over 5,000,000 
persons, Cuba alone has any claim to be classed as Latin 
in its population. 

From this brief survey of the statistics of population 
we see easily that of the twenty countries with which we 
are dealing only four can with any degree of accuracy be 
classed as Latin in population. It cannot even be claimed 
that the small ruling class in the others is composed, in 
every case, of Latins, even if, as I have said before, we 
class the Spaniards as Latins. 

In fact, we have to do here with Indian populations, 
living under white-man Constitutions, which they do not 
understand, much less appreciate. These Indian popula- 
tions are not fitted as yet for Constitutions which rest 
upon the principles of national consensus and individual 



THE EFFORT OF AMERICA 357 

worth. Tribal organization and communism of goods 
were the main elements of the life — I will not say "civil- 
ization" — natural to them. 

They never have been satisfied and are not now satis- 
fied with the system imposed upon them by the Euro- 
peans. They do not seem to be able to rise to the enjoy- 
ment of its advantages. They feel oppressed by its op- 
portunities, of which they can make little use. The very 
Liberties guaranteed to them by these Constitutions ap- 
pear only to give the intelligent, not to say crafty, the 
means for overreaching them. A benevolent despotism 
would best fit their situation and stage of development. 
A democratic Republic with such populations is a wicked 
farce. It is dispiriting to feel that any human beings are 
incapable of civilization. We ought not to give way to 
such pessimism, but should keep on striving with our 
means of education and example for their uplift. Never- 
theless we must be patient with much that is dishearten- 
ing and remember that many centuries of effort and de- 
velopment were necessary to bring the white man up to 
his still imperfect civilization. These excellent Constitu- 
tions may seem to us to be chiefly waste paper, but they 
are not. They are a great object-lesson. They are a 
great rallying-point. They show men where at last the 
political pendulum, swinging between the extremes of 
despotism and anarchy, will finally come to rest. With 
one real state in South America, Argentina, and one real 
state in North America, the future of all the Americas is 
never to be despaired of. 



CHAPTER V 

THE NEW UNITED STATES OF NORTH AMERICA 

The solution presented by the Constitution of the 
United States of North America to the great problem 
of this study was, as we know, the solution as it stood 
at the beginning of the year 1898. As we have seen, 
the Civil War of 1861-5 had, through the Thirteenth and 
Fourteenth Amendments to the Constitution produced by 
it, added to the Immunities of the Individual against the 
powers of Government, and the balance between Govern- 
ment and Liberty as thus regulated seemed to be fairly 
struck. We seemed to have found the solution in principle 
of the great problem of political civilization and to be en- 
gaged now with the work of its apphcation to details. But 
with the year 1898 came a turn in affairs, which has changed 
materially, if not completely, the course of our develop- 
ment. 

The influences under which we now came were those 
springing out of the experiences of a war of conquest. 
It is hardly credible that this Government went into the 
Spanish War of 1898 with any conscious purpose of con- 
quest. It is practically certain that President McKinley 
entertained no such thought. But it is the natural re- 
sult of victory in foreign war that the victor must take 
his indemnity, in part at least, in territory. The Spanish- 
American War of 1898 was no exception to the rule, and 

358 



THE EFFORT OF AMERICA 359 

we came out of it saddled with Porto Rico and the Phil- 
ippines and with obligations in regard to Cuba, all of 
which have cost us not only blood and treasure, but have 
led or misled us into new paths of development whose 
termini have not yet been reached — in fact, not yet dis- 
covered. 

Territorial expansion was no new thing for these United 
States at the beginning of the last decade of the last cen- 
tury. From the beginning of the nineteenth century on- 
ward our history had been one of expansion, but it was 
expansion upon this Continent, generally from East to 
West, and the newly acquired territory was quickly set- 
tled by our own blood and race relatives from the East. 

The Constitution provided a way to govern the people 
occupying such territory and for granting to them at the 
proper time the powers of a State of the Union. These 
constitutional provisions were, it is true, a little ambigu- 
ous. They read: "Congress shall have power to dispose 
of, and make all needful rules and regulations respecting, 
the territory or other property belonging to the United 
States," and "New States may be admitted by the Con- 
gress into this Union." These provisions are to be found 
in Article IV of the Constitution, not in Article I, which 
contains the clauses respecting the organization and powers 
of Congress. This fact also tended to make the meaning 
of these provisions obscure. Nevertheless Judicial deci- 
sion and practise had, before the middle of the nineteenth 
century, substantially settled by interpretation the main 
points of these provisions. Under these interpretations 
it was settled as constitutional law that when by treaty, 
conquest, or any other method of acquisition, territory 
was taken by the United States Government for the 
United States, such territory was at first governed by 



36o GOVERNMENT AND LIBERTY 

the President, as Commander-in-Chief of the military 
power, until Congress should establish Civil Government 
therein, but that the Government by the President, in so 
far as martial law was not made necessary by a state of 
war or rebellion therein, and the Civil Government estab- 
lished therein by Congress, were both under the limita- 
tions imposed by the Constitution upon all Government 
in behalf of the Private Rights of the Individual and his 
Immunity against all governmental power; and that the 
automatic effect of Congress admitting any part of such 
territory into the Union as a State was the still further 
limitation of the powers of the United States Government 
or any branch thereof over the inhabitants of such terri- 
tory by authorizing them to assume that part of the 
whole governmental power ascribed by the Constitution 
to a State of the Union. 

The famous Dred Scott decision of the year 1857 ap- 
peared to limit even further than this the powers of Con- 
gress in the Government of the Territories of the Union, 
denying to Congress the full powers of Government under 
the limitations only of the constitutional Immunities of 
the Individual, and restricting it to the powers absolutely 
necessary for holding them as the property of the United 
States. After the Civil War and the constitutional changes 
in behalf of Individual Liberty resultirig from it, the old 
doctrine was re-established, recognizing to Congress the 
general powers of Government in the Territories Hmited 
only by the constitutional provisions defining and guaran- 
teeing the fundamentals of Individual Liberty. 

These principles remained unquestioned down to the 
close of the War with Spain of 1898, when the acquisi- 
tion of Porto Rico and the Philippines and the annexation 
of the Hawaiian Islands, that is, of territory separated 



THE EFFORT OF AMERICA 361 

by broad bodies of water from the Continent, precipi- 
tated the question of the powers of the United States 
Government over the inhabitants of these regions and of 
their Liberties under the Constitution. This question 
was tested under the two main issues of the powers of 
Congress to levy special duties upon articles of commerce 
between these lands and the other parts of the United States 
and to authorize the prosecution of persons for crime within 
these lands without Grand Jury indictment. 

The Constitution provides that all duties, imposts, and 
excises shall be laid with uniformity throughout the United 
States and that no person shall be held to answer for a 
capital or otherwise infamous crime unless on present- 
ment or indictment by a Grand Jury; and the Supreme 
Court had decided in the well-known case of Loughbor- 
ough vs. Blake that the phrase United States in this 
connection comprehends all territory subject to the juris- 
diction of the Government of the United States. Never- 
theless Congress imposed duties upon goods brought from 
these regions into other parts of the United States, and 
duties in these regions upon goods brought from other 
parts of the United States into them, without imposing 
the like duties upon goods going and coming between the 
other divisions of the United States. and authorized prose- 
cution for crime in them without Grand Jury indictment. 
The constitutionality of these Congressional Acts was 
tested in the well-known cases of DeLima vs. Bidwell, 
Downs vs. Bidwell, Dooley vs. the United States, and Ha- 
waii vs. Manldchi in the years 1901-2, and they were 
pronounced constitutional. 

Let us now see, if we can, what must be the constitu- 
tional principle upon which these decisions rest. It must 
be that when foreign territory is acquired by the Govern- 



362 GOVERNMENT AND LIBERTY 

ment of the United States, or by the United States through 
its Government, then the Government of the United States 
over the inhabitants of such territory is unHmited, until 
by a specific Act of Congress the Hmitations provided by 
the Constitution on governmental power in behalf of In- 
dividual Liberty are extended to them. We cannot logi- 
cally stop short of this, however much some of the Jus- 
tices seemed to be disturbed by it. WHiat seemed to 
disturb them, however, was the idea that the Congress, 
the creature of the Constitution, should be held to be, to 
such a degree, master of its creator as to determine when 
and where it should be held to be in force. Some of them 
tried to escape this embarrassment by the completely ar- 
bitrary assertion that when Congress shall have formally 
introduced the Constitution into such places, it may never 
withdraw the same from them. The only completely log- 
ical position is that the clause of the Constitution which 
vests in Congress the power to make all needful rules and 
regulations respecting the territory and other property of 
the United States must be interpreted as vesting in Con- 
gress the unlimited powers of Government, that is sov- 
ereignty, in such regions, and that when Congress intro- 
duces the limitations upon Government in behalf of Indi- 
vidual Liberty recited in the Constitution it does so sim- 
ply as a Congressional Statute, having only the force of 
a Congressional Statute and subject to the vicissitudes of 
a mere Statute, that is, of being modified or repealed by 
the power enacting it and of being declared null and void 
by the Courts. The fact that such Hmitations were ex- 
pressed by Congress in its Statute in exactly the same 
words as those employed in the Constitution or were 
simply referred to by Congress as such and such provi- 
sions of the Constitution cannot change their nature when 



THE EFFORT OF AMERICA 363 

enacted by Congress under its power to make all needful 
rules and regulations respecting the territory or other 
property of the United States. They became simply parts 
of a Congressional Statute and as such subject to modi- 
fication and repeal by Congress at will. This view of 
the subject relieves us of the embarrassment of attribut- 
ing to Congress a power over the Constitution in refer- 
ence to such territory, a power to let the Constitution in 
or keep it out of its own volition, and at the same time it 
places that despotic power in the hands of the Govern- 
ment of the United States necessary to the successful 
realization of an imperial policy, necessary to the Gov- 
ernment of Colonies and Dependencies inhabited by people 
incapable of self-government. 

The only trouble about taking this completely logical 
position thus frankly expressed is that it makes the Govern- 
ment of the United States, in such territory, simply des- 
potism, benevolent and beneficent, perhaps — yes, probably 
— but a despotism, stripped of every bit of constitutional 
hypocrisy and standing there bald and bare and unmis- 
takable. There is no question that an unlimited Govern- 
ment is necessary for the successful realization of a colonial 
policy, i. e., unlimited in the early periods, at least, of rule 
in the Colony or Dependency. 

But what will be the reflex influence upon the Govern- 
ment at home of exercising despotic or unlimited power 
in Dependencies? What will be the effect upon other 
parts of the Constitution of finding one part where in 
time of peace and civil administration there is no lim- 
itation upon the powers of Government? May not this 
prove to be: 

"The little pitted speck in garnered fruit, 
That rotting inward slowly moulders all " ? 



364 GOVERNMENT AND LIBERTY 

I cannot forget the great struggle in the Supreme Court 
of the United States over these deep questions nor the 
differences of opinion upon the vital points, so great that 
only a bare majority of the Justices upheld the decisions 
and they could not agree concerning the principle upon 
which to base it. The Irish wit of Mr, Dooley properly 
described the situation when he told his friend Hennessey 
that the decision in these cases was rendered by Justice 
Brown, eight Justices dissenting. Nor can I ever forget 
the grave concern which spread over the country, espe- 
cially among men learned in the peculiar character of our 
constitutional law. The newspapers and magazines were 
filled for a long time with criticisms upon these decisions 
and the reasoning upon which they were supported. Grad- 
ually the sounds of the conflict died away and the assimi- 
lation of the new aliment went silently on transforming 
the national tissues and preparing the national opinion 
for another and a much greater change in our constitu- 
tional adjustment of Government and Liberty to each 
other. 

The occasion of this change was the vast development 
of the Corporation system in the business of the country, 
effected during the twenty years from 1890 to 1910, and 
the popular hostility to the Corporations and the methods 
attributed to them. 

Few men in this country have ever troubled themselves 
to inquire deeply and impartially into the nature of a 
Corporation, especially a private Corporation. They gen- 
erally have some kind of a vague conception that it is 
some sort of a devilish contrivance through which a few 
malevolent and greedy spirits are gradually absorbing the 
wealth of the world. It must be confessed that it has 
only too often subserved the purpose. But we must dis- 



THE EFFORT OF AMERICA 365 

tinguish the nature of the thing from the ends which it 
may be made to promote. 

A Corporation is nothing but a combination of human 
beings, who have been authorized by Government to do 
business under certain privileges, the chief among which 
are perpetuity and limited liability, not limited liability 
of the Corporation but of the stockholders, the members 
of the same. Most people in these United States who 
have saved and invested a little money are now members 
of one or more of these bodies, and the powers of Gov- 
ernment which correspond naturally to the corporate priv- 
ileges just mentioned are those of revocation of such 
privileges for proper cause, periodical revaluation of the 
franchise and enforcement of the requirement that the 
real and nominal capital shall correspond. 

The Corporations exploited by dishonest ofHcials and 
directors for improper self-enrichment are few in com- 
parison with those which are not, but the many have 
to bear the sins of the few, and the politicians know that, 
with miiversal suffrage, there is no surer way to popu- 
larity and office than to acquire the reputation of a trust- 
buster. The exercise of greater power over Corporations 
by Government, of power beyond the natural limitations 
upon the privileges granted them, has been claimed and 
approved on the ground that this was necessary to pro- 
tect the Liberty of the Individual. Corporations were 
made subject not only to an administrative control not 
imposed on the same business when carried on by indi- 
viduals or firms not having corporate privileges, but Cor- 
porations were singled out and a tax upon their incomes, 
which is nothing else than the incomes of the individual 
stockholders, was imposed under the title of an excise 
tax upon their privileges as measured by their incomes. 



366 GOVERNMENT AND LIBERTY 

The Supreme Court approved of this exaction not as being 
a tax upon property nor upon the income from property, 
but as a license to do business under corporate privileges. 
The difference, from the point of view of constitutional 
law, lay in the principle that, as a tax on property or the 
income from property, it would have been necessary to 
have distributed the same among the States of the Union 
according to their respective populations, while as a li- 
cense or excise it was only necessary to levy it with uni- 
formity throughout the United States. This latter was 
what the friends of the exaction wanted and the Judicial 
decision was a triumph for them. 

Encouraged by the success of this move they now suc- 
ceeded in influencing Congress to enact a measure impos- 
ing a tax upon the income of Individuals, calling it an 
excise. They called it a measure for extending the excise 
upon Corporations to Individuals. The purpose was to 
avoid the necessity of distributing this exaction among 
the States of the Union according to their respective pop- 
ulations, and to levy it under the limitations of uniform- 
ity throughout the United States. The inhabitants of 
the South and the West have manifested the view that 
under this hmitation the burden of the exaction could 
be made, by the fixing of the exemption clause, to fall 
upon the East, and have also manifested their desire to 
do this; while the poHticians of all sections have revealed 
the purpose of throwing the burden of the exaction, by 
means of this same contrivance, upon the relatively few, 
making the tax, thus, popular among the exempted ma- 
jority. Without any exemption, the tax, whether levied 
on the principle of distribution among the States of the 
Union according to their relative population or on the 
principle of uniformity throughout the United States, 



THE EFFORT OF AMERICA 367 

would be a fairly just and equal tax, since the larger incomes 
are generally to be found where the larger populations 
exist. The desire to class this tax as an excise instead 
of a direct tax is, therefore, to be explained only in this 
way, viz.: that as an excise, exemption from the burden 
might be accorded to some and not to others, while as 
a direct tax this could not be well effected. 

It is difficult to see, however, how any exemption was 
compatible with the principle of equal protection of the 
law. We all feel that this is a very fundamental limita- 
tion upon all Government in our system, but, while it is 
an express constitutional limitation on the powers of the 
States of the Union, it was, as to the National Govern- 
ment, only an implied limitation, if indeed it existed at 
all, implied in this case from the provision that all imposts, 
duties, and excises must be uniform. But even admitting 
that the National Government was under no constitutional 
requirement to accord equal protection of the law, it is 
still very difhcult to see how a tax upon the income of an 
Individual could be classed as an excise. An excise is a 
license tax, a tax upon the permission to do something. 
It would sound rather strange to American ears to hear 
that an Individual must have the permission of Govern- 
ment to earn his living and pay for it as a privilege, with- 
out regard to the pursuit he may follow or the work he 
may do. 

The President apparently regarded the attempt to tax 
the incomes of Individuals under the name of an excise 
as a subterfuge, as a way of escaping the decision of the 
Supreme Court in the case of Pollock vs. The Farmers' 
Loan and Trust Company, which held an income tax to 
be a direct tax, and which was the authoritative interpre- 
tation of the constitutional provision. He, therefore, ve- 



368 GOVERNMENT AND LIBERTY 

toed the bill and the Houses of Congress could not repass 
it by sufficient majority to overcome the veto. In his 
veto message, however, the President suggested an Amend- 
ment to the Constitution, whereby the income tax might 
be taken from under the Hmitation imposed by the Con- 
stitution upon the levy of direct taxes and placed under 
that obtaining with reference to duties, imposts, and ex- 
cises. I think the President made a grave mistake in 
recommending this. He simply suggested with approval 
the idea that things may be given names in the Constitu- 
tion without any regard to their natural character. In a 
minor way he was simply repeating the error of the Roman 
Emperor who called his horse a senator. He had very 
properly objected to Congress doing this sort of thing, but 
did not seem to appreciate that the amending power should 
not do it. He saw clearly that back of Congress was the 
Constitution as interpreted by the Judiciary, but did not 
appear to see that back of the Constitution were, or at 
least ought to be, the sound principles of political science, 
which deal with things according to their nature, and not 
as a jugglery of artificial names. 

This suggestion on the part of the President has been 
finally realized in a way which, I cannot believe, he fore- 
saw or would now approve. The Houses of Congress 
acted quickly and very inconsiderately in formulating the 
Amendment. The professional politicians were tumbling 
over each other to find a popular issue. The redistribu- 
tion of wealth by governmental power was the winning 
idea of the day among the masses, that is, among the 
electoral majority, and they framed this Amendment to 
meet that idea. They masqueraded, indeed, under the 
high-sounding patriotic principle that the Government 
should be empowered to get adequate revenue in times 



THE EFFORT OF AMERICA 369 

of emergency. But they were understood as they ex- 
pected to be and intended to be. They framed the crud- 
est, most reckless bit of constitutional legislation known 
to our history. It simply made waste paper of the Con- 
stitution in respect to the relation of Government to the 
constitutional rights of the Individual to his property. It 
reads: "Congress shall have power to lay and collect 
taxes on incomes from whatever source derived without 
apportionment among the several States and without re- 
gard to any census or enumeration." That is, the Six- 
teenth Amendment takes the tax on incomes, which by 
the law of the land and by a sound political science is 
held to be a direct tax, and which, down to the adoption of 
this Amendment, March i, 1913, could be laid by Congress 
only under the limitation of apportionment among the 
States according to their relative population, out from 
under this limitation, without declaring this tax to be a 
duty, impost, or excise, that is, without placing it under 
the limitation resting upon Congress in laying duties, im- 
posts, or excises, the limitation of uniformity throughout 
the United States. According to the Sixteenth Amend- 
ment the power of Congress to lay and collect taxes on 
incomes from whatever source derived is now absolutely 
unlimited. Congress may now exercise the whole power 
of sovereignty upon this subject. 

The vast importance of this subject is revealed when 
we reflect that a tax on incomes, which may be laid with- 
out any constitutional limitations, puts all property and 
all human effort at the mercy of the governmental body 
which may lay such a tax. It is not like any other tax. 
Other taxes cover only a part of the property or a part 
of the labor or activity of the individual. But the un- 
limited income tax takes the whole thing or may take 



370 GOVERNMENT AND LIBERTY 

the whole thing at the option of the Government. In 
fact, since the adoption of the Sixteenth Amendment we 
have no real constitutional Government upon that most 
important of all subjects, the relation of Government to 
the Individual's right to property. 

What is genuine constitutional Government? It is not 
simply a Government based on a written document, with- 
out regard to whence that document came and what it 
provides. Genuine constitutional Government rests upon 
two fundamental principles, principles without which, 
whatever else it may be, it is not genuine constitutional 
Government. These two principles are, first, that it must 
be representative Government and, second, that it must 
be Hmited Government. That is, first, there must be 
back of Government a more ultimate authority, which 
decrees the organization of the Government, vests it with 
powers, and imposes upon it limitations. This body or 
organization we denominate in political science the sov- 
ereign. Now, in genuine constitutional Government this 
body must not govern. If this body should govern, such 
Government would necessarily be absolute and unlimited, 
since, as the original and most ultimate authority in the 
order of authorities, there would be nothing back of it 
which could control or restrain it. 

But this is not yet enough for the establishment of 
genuine constitutional Government. Constitutional Gov- 
ernment must be representative Government, but repre- 
sentative Government can exist without being genuine 
constitutional Government. Let us suppose, for example, 
that there exists in a given political system a sovereign 
power organized back of, separate from, and supreme over 
the Government, but that it should vest all of its own 
power without exception or limitation in the Government, 



THE EFFORT OF AMERICA 371 

or all of its power in regard to certain most important 
subjects in the Government, such a Government would 
be representative, but it would not be constitutional in 
any true and genuine sense of the word. It would be 
an absolute Government, in whole or part, no matter 
how benevolently disposed. In order to be constitutional 
it must be subject to limitations imposed upon it by the 
sovereign in behalf of the Rights and Immunities of the 
Individual. Constitutional law is a body of Hmitations 
on governmental power and you dare not call any docu- 
ment a Constitution, no matter from what source it may 
come, which is not such. It would not solve, in the slight- 
est degree, the great problem of political history and po- 
litical science, the reconciliation of Government with Lib- 
berty. It would simply sacrifice Liberty to Government. 

Now, the sovereign, through the Sixteenth Amendment 
to the Constitution, has done just this in regard to the 
rights of the Individual to his property. It has made 
over to the Government the whole power of the sovereign, 
unlimited and unqualified, to take what it will and in any 
way it will from the Individual, to take from one Individ- 
ual and not from another, as it will, and to take in dif- 
ferent proportion from different Individuals, as it will. 
This is not a power of constitutional taxation. It is the 
power of confiscation. It is folly for us to imagine that 
we have any longer a Constitution in regard to the rela- 
tion between Government and the Individual in his rights 
to property or even to his own physical or mental efforts. 
That is air gone and past and it remains now to be seen 
what the reflex influence of this vast change will be upon 
the other parts of the Constitution. 

Congress has made swift use of its new power. It has 
passed an Act for the taxing of incomes, which is highly 



372 GOVERNMENT AND LIBERTY 

discriminatory and arbitrary in many directions, although 
it was generally understood that Congress would make 
no use of the power granted in the Amendment except in 
times of great emergency. The Act was a retroactive law. 
It confounded principal with income. It exacted payment 
of the tax, in part, before it was due. It discriminates 
against living in regular wedlock. It discriminates against 
persons having incomes of from three to one hundred 
thousand dollars as compared with persons having incomes 
of less than three thousand dollars, on the one side, or 
more than one hundred thousand dollars on the other. 
And it requires private parties to act as governmental 
collection agents without holding office or receiving salary. 

Under the Constitution as it was before the Sixteenth 
Amendment all this would have been fatal to the consti- 
tutionality of the Act, but under the Sixteenth Amend- 
ment, which is the last word of the sovereign upon this 
subject, I do not see how these things, or anything else 
which the Congress may choose to do in regard to an 
income tax, can be judicially nullified, or nullified in any 
way, except by another Amendment. 

It is, indeed, a fundamental principle of hermeneutics 
that all parts of a Constitution or any other legal instru- 
ment must be taken together and each part so interpreted 
as to give every other its natural force and meaning. But 
this principle has full force only when all parts of the in- 
strument are enacted at one and the same time. Where, 
on the contrary, it consists of a number of successive en- 
actments, as in the case of a Constitution with Amend- 
ments, then another equally fundamental principle con- 
trols, viz.: that the last will of the sovereign is law and 
displaces everything preceding in conflict with it. 

Look at it as we may, the new interpretation of the 



THE EFFORT OF AMERICA 373 

provision of the Constitution giving Congress the power 
to make all needful rules and regulations respecting the 
territories of the United States, whereby Congress is held 
to possess unlimited power in the Government of the 
Territories and Dependencies of the Union, and the Six- 
teenth Amendment to the Constitution, have given us a 
new political system, one in which Government is accorded 
far greater powers than it possessed in our system before 
1898. There is nothing now to prevent the Government 
of the United States from entering upon a course of con- 
quest and of empire, especially throughout the Americas, 
to which the more and more extravagant interpretations 
of that idol rather than ideal of our poHcy, named the 
Monroe Doctrine, is ever tempting us. We are by no 
means a peaceably inclined people. The continuous con- 
quest of a new country from the savage, the wild beast, 
and the jungle, through a period of three centuries, does 
not tend to produce a peaceably incHne^ people, but an 
adventurous, warlike, and vainglorious people. In fact, 
besides being belligerent and boastful, we are restless, 
nervous, and at times hysterical. We have just the quali- 
ties to answer the call of a Napoleon in the Presidency. 
And now that the Government has free hand with the 
purse-strings of the rich, without being compelled to con- 
sult them in the slightest degree as to the amount it will 
take and as to the purpose to which it shall be applied, 
and since Congress has become a body rather for approv- 
ing the plans and deeds of the President than for control- 
ling him and for legislating independently, it is possibly 
only a question of time when our Napoleon will appear 
and take advantage of these opportunities; at least, it 
would only be natural that he should and it is to be ap- 
prehended that he will. 



374 GOVERNMENT AND LIBERTY 

The events of these sixteen years since 1898 have brought 
about a serious readjustment of the relation of Government 
to Liberty in our political system, and that to the advan- 
tage of Government at the cost of Liberty. And the ten- 
dency which still manifests itself is to move right on in 
this line of development. And I do not see that the 
measures proposed in some quarters as a means of con- 
trolling it will have the effect. In the long run it seems 
to me more probable that they will facilitate and acceler- 
ate it. These measures are known as the popular initia- 
tive, the referendum, and the recall. The idea in them 
all is, as most of their supporters claim, to increase the 
influence of the people over the activities of Government, 
and it is simply assumed by them all that this is a good 
thing, to any degree and effected in any manner. Both 
of these points, however, need further and much more 
particular and accurate consideration. 

In the first place, the influence of the people over the 
Government, where the principle of popular sovereignty 
is the basis of the Government, cannot be advanced to 
the point of the people, as sovereign, actually governing, 
without destroying the limitations upon governmental 
power, that is, without making Government absolute, 
without setting constitutional Government aside, since 
constitutional Government means nothing at all unless it 
be representative limited Government. The line between 
influence and control must be correctly and carefully 
drawn. The sovereign must not be substituted for the 
Government. What will generally, if not always, happen 
is that it will not be the sovereign people, that is, the 
whole people in sovereign organization, which will con- 
trol the activities of Government, but that it will be a 
certain part of the people, not that part which is occu- 



THE EFFORT OF AMERICA 375 

pied with private business, with making a living and 
something more with which to pay taxes, but that part 
which is loafing about the public buildings, liquor saloons, 
and gambling-houses, waiting for something to turn up 
whereby a job, a rake-off, a concession, or a divide of some 
kind may be had; in other words, it will be "the mob of 
the Forum," that part which one day plunges society into 
anarchy and the next day is shouting hurrahs for Caesar. 
The trouble with the whole scheme is, from the point of 
view of sound poUtical science, that it seeks to introduce 
something having legal force between the sovereign and 
the Government, between the sovereign and the constitu- 
tional Liberty of the Individual, a something which destroys 
constitutional Government, on the one side, and suppresses 
Individual Liberty, on the other, and finally falls itself a 
prey to the supreme demagogue of the day. 

There is nothing sound in the popular initiative, which 
may not now be better attained by the existing right of 
petition. There is nothing sound in the referendum except 
the occasional appeal to the actual sovereign to amend or 
revise the organic law. There is no appeal in a sound 
political science from Government except to the sovereign, 
and the frequent appeal to the sovereign in the ordinary 
work of Government displaces, as I have already said, 
constitutional Government by unlimited Government. I 
do not criticise the referendum as being radical, the com- 
mon objection to it. It is not always radical. It is fre- 
quently conservative and sometimes conservative in a 
very bad sense. It sometimes prevents the Legislature 
from doing what ought to be done, and it always lessens 
the sense of responsibility on the part of the Legislature; 
it always has a deteriorating influence on Government. 

Finally, the recall when applied to elected officials is 



376 GOVERNMENT AND LIBERTY 

simply a method of dismissing elected officers by the body 
which elects. It has, certainly, some sort of an analogy 
to the principle of appointed officials being subject to dis- 
missal by the same authority which appoints them. It 
tends to give the electorate within an administrative divi- 
sion a certain control over the officials chosen by it. When 
apphed to members of a legislative body it reverses the 
principle contained in most of the Constitutions of the 
present day, viz.: the principle of uninstructed represen- 
tation, the principle which holds that it is the judgment 
of the legislator and not the will of the voter which should 
make the law. The recall when applied to the legislator 
is the old question of will against reason in the philosophy 
of legislation, it is the Romanic principle against the Teu- 
tonic. When applied to officials, all there is of value in 
it may be found in the existing process of impeachment. 
When it goes beyond this it will prove, in most cases, to be 
only another encouragement not to execute the laws against 
those who are interested in what is vulgarly known as the 
"wide-open town." Everybody knows that the majority 
of the active men in American politics constitute, as a rule, 
that quarter of the electorate pecuniarily interested in the 
liquor saloons, the gambHng-houses, the brothels, and in 
the schemes of organized labor, the first named figuring 
chiefly in local politics and the last named chiefly in State 
and national politics. These men are generally without 
any public sense. They are bound together by class interest 
and seek to use public power for private ends or to pre- 
vent the use of public power for the general good. They 
control by lending their aid to that party which will go 
furthest in securing the enactment of legislation friendly 
to their peculiar interests or in preventing the enforce- 
ment of legislation not partial to those interests. They 



THE EFFORT OF AMERICA 377 

have the most compact and active organization existing 
in the poHtics of to-day, and they are just the men who 
would be most Hkely to engineer the recall of officials and 
emasculate the administration of all law not intended and 
calculated to further their class interests. What are gen- 
erally termed the "interests," the "capitalistic interests," 
would also find in the recall an opportunity to control 
officials. Probably anybody who really knows anything 
about practical politics and is himself not seeking office 
or popular applause will testify that the influence and 
power of the capitalistic interests are usually overrated, 
simply because the force of numbers in the electorate is 
against them. But whatever influence they may have would 
be intensified by the opportunities of the recall. Espe- 
cially would this be true if the recall should be applied 
to the Judges of the Courts. 

Neither political science nor the general constitutional 
law of the present favor the principle of the appointing 
power having the power of dismissal in the case of the 
Judge. The Judge is not executing the orders of a gov- 
ernmental superior as is the executive officer. He is ex- 
ercising a judgment, and therefore a discretion, supposed 
to be superior to that of the person or persons who ap- 
point him or the voters who elect him, in the interpre- 
tation and application of the law. No intelligent and 
independent administration of justice could be maintained 
under such a practise. The test of constitutional Civil 
Liberty is the power to uphold the Rights and Immuni- 
ties of a single Individual, not only against a majority of 
those who would probably participate in the recall of a 
Judge, but against a majority containing every other in- 
dividual in the State or nation. Nothing short of the 
inviolable tenure of the Judge can secure this. It is quite 



378 GOVERNMENT AND LIBERTY 

enough that he is subject to impeachment for crimes and 
maladministration in office. 

But most fatal of all to the existence of constitutional 
Government and constitutional Liberty would be what is 
termed the recall of the Judicial decision. This would be 
nothing short of the substitution of the will of a part of 
the people, especially of that part which would be most 
ignorant of the true relation of Government to Liberty, 
for the reason of the Jurist in the interpretation and appli- 
cation of the law. This whole scheme of inserting this 
third something between the sovereign and the Govern- 
ment created and limited by the sovereign can have no 
other result than the dethronement of the rightful sov- 
ereign, the demoralization of the rightful Government, 
and the subjection of the constitutional Liberty of the 
Individual to the tyranny of a class pursuing its own 
interests under the name of "social justice." 

No such nostrums as these can be a cure for the dis- 
ease of governmental absolutism introduced into our body 
politic by the acquisition of Dependencies and the Six- 
teenth Amendment. The only way to check the inroads 
of these spots of decay in our constitutional system is to 
get rid of all these Dependencies as soon as possible and 
to amend the Sixteenth Amendment so as to place the 
power of Congress over the property of the Individual 
under proper limitations, such limitations as will distin- 
guish taxation from confiscation and hold the Govern- 
ment to its proper aims, aims reached also by proper 
means. 

We are further away to-day from the solution of the 
great problem of the reconciliation of Government and 
Liberty than we were twenty years ago. In principle we 
have too much Government and in practise too slack and 



THE EFFORT OF AMERICA 379 

irregular execution of the law. This cuts both ways into 
the constitutional Liberty of the Individual, for it is gen- 
erally the law supporting that Liberty which is most fault- 
ily executed. Congress has been liberated from all limi- 
tations in dealing with the property of the Individual by 
the Sixteenth Amendment and from a conservative in- 
ternal structure and composition for the use of this great 
power by the Seventeenth, which makes of the Senate 
another House of smaller membership. 

It seems to me that we are swaying from the path of 
true progress. That path must lead ever to the better and 
more perfect reconciliation of Government and Individual 
Liberty, and, as we have seen, this signifies, in ultimate 
analysis, four things, viz.: a true and correct organiza- 
tion of the sovereign power as the basis of all Govern- 
ment and Liberty, so as to give every element and every 
force within the state its proper value and open the way 
for its legitimate activity and for the exercise of its nat- 
ural weight; second, a Government of conservative struc- 
ture and limited powers, a Government which will not 
only be proof against the usurpation of a despot, but which 
cannot be adapted to further the rule of class interests; 
third, a fully rounded, well-defined sphere of Individual 
(\ Immunity from governmental power, such as will liber- 
ate the physical, intellectual, and moral capacity of the 
Individual, stimulate it to the fullest development and 
encourage its service to the advancement of civilization; 
and lastly, a learned, experienced, impartial, unprejudiced, 
upright organ for maintaining in detail, through its in- 
terpretations and judgments, the constitutional balance 
between Government and Liberty. 

Down to the year 1898, we had all this in fair degree 
and in fuller measure than any other state of the world. 



38o GOVERNMENT AND LIBERTY 

It needed some readjustments, but no radical or revolu- 
tionary changes. But it did not lend itself to an imperial 
policy abroad nor to a paternal programme at home. A 
School of Sociologists and Political Economists arose, who, 
impatient of the voluntary methods of religion, charity, 
and philanthropy, have sought to accomplish what they 
call social justice, the social uplift, by governmental force. 
There is no question that they have exercised a strong 
influence in directing the thought of the present, and 
they have taught the politicians that there is no vote- 
catcher in a system of universal suffrage comparable to 
the promise of forcing those who have to divide with 
those who have not or have less. The Jingo and the 
Social Reformer have gotten together and have formed a 
political party, which threatened to capture the Govern- 
ment and use it for the realization of their programme of 
Caesaristic paternalism, a danger which appears now to 
have been averted only by the other parties having them- 
selves adopted this programme in a somewhat milder de- 
gree and form. All parties are now declaring themselves 
to be Progressives, and all mean in substance the same 
thing by this claim, viz.: the increase of governmental 
power over the constitutional Immunities of the Individual, 
the solution by force of the problems of the social rela- 
tions heretofore regulated by influence, by religion, con- 
science, charity, and human feeling, the substitution of 
the club of the policeman for the crosier of the priest, the 
supersession of education, morals, and philanthropy by 
administrative ordinance. 

Now, all this may be necessary, but is it progress in 
civilization? It may be that the character of our people 
has so deteriorated during the last twenty-five years that 
the ominous change in the relation of Government to 



THE EFFORT OF AMERICA 381 

Liberty ought to be made, but let us consider before we 
do it whether there be not a better way, a more American 
way; whether a revival of religion and morals, a re-estab- 
lishment of the influence and functions of the Churches, 
and an improvement of our system of education may not 
better subserve the social uplift and still preserve our 
Liberty. 

And let us also profoundly reflect what may be the 
effect of a vast advance in govermnental power and ac- 
tivity. In his criticism of Hasbach's recent most valu- 
able work upon Modern Democracy, Professor Schmoller 
relates that when, in the year 1890, the question of social 
reform was being considered by the Prussian Council of 
State, the Emperor uttered these profound, and for so 
young a man, remarkable words. He said: "Das Mass 
ertraglicher socialer Reform ist bedingt durch die Starke 
der Staatsgewalt und deshalb ist bei uns Vieles moglich, 
was anderwarts vielleicht gefahrHch ware." That is, a 
permanent, stable, powerful Government, a Government 
standing over all classes in the Society and independent 
of them all, might be trusted to say how far force can 
be safely employed in requiring sacrifices from one class 
to another, but a changing, shifting Government, a Gov- 
ernment representing either the property class, or the 
propertyless class, especially a Government representing 
the propertyless or small-property class, a Government 
representing the modern democracy under universal suf- 
frage, a Government representing the class to be benefited 
by the confiscation and redistribution of wealth through 
governmental force, cannot be safely trusted with any such 
power. It would become a temporary despotism, which 
would destroy property, use up accumulated wealth, make 
enterprise impossible, discourage intelligence and thrift. 



382 GOVERNMENT AND LIBERTY 

encourage idleness and sloth, and pauperize and barbarize 
the whole people. 

This is no idle prophecy. The whole history of the 
world's political development sustains it. The history oP^ 
that development shows beyond any question or cavil that 
a Republic with unlimited Government cannot stand, 
that a Republic, which makes its Government the arbiter 
of business, is of all forms of state the most universally 
corrupt, and that a Republic, which undertakes to do its 
cultural work through governmental force, is of all forms 
of state the most demoralizing. If a state will have Gov- 
ernment undertake those tasks which naturally belong, 
or have come through historical development to belong, 
within the sphere of Individual Liberty, then it must 
have a Government lifted so far above all class and party 
interests that it cannot be controlled or even influenced 
by any of them. But this is authority reaching from 
above downward and not from below upward. This is 
Monarchy in the original sense of jure-divino sovereignty. 
This is the reason for and the advantage of its existence. 
But, for us, this is not progress. It is for us retrogression 
of the most positive kind known to political history. 

In the face of this consideration, it is time, high time, 
for us to call a halt in our present course of increasing 
the sphere of Government and decreasing that of Liberty, 
and inquire carefully whether what is happening is not 
the passing of the Republic, the passing of the Christian 
religion, and the return to Caesarism, the rule of the one 
by popular acclaim, the apotheosis of Government and 
the universal decline of the consciousness of, and the de- 
sire for, true Liberty. The world has made this circuit sev- 
eral times before. Are we making it again or is it only 
a step backward in order to get a better foothold for 



THE EFFORT OF AMERICA 383 

another advance in the true direction? Let us hope it is 
the latter and make it so by keeping always consciously 
before us as the goal of political civilization the recon- 
ciliation of Government with Liberty, so that, however, 
the latter shall be seen to be the more ultimate, shall be 
seen to be both end and means, while the former is only 
means. This is fundamental in the profoundest sense 
and there can be no sound progress in political civilization 
without it. 



INDEX 



Abelard, 164. 

Abyssinia, 28; history and institutions 
of, 29, 30; Imperial absolutism in, 30; 
influence of the priesthood in, 30, 31. 

Act of Supremacy, the, 173, 187-189. 

Act of Uniformity, the English, 225. 

Adrian II, 138. 

Africa, independent states of, 28-34. 

Alemanni, the, 88. 

Alexander III, 144. 

Alfred, King, his system of Government 
and Liberty, 122, 123 

Alien and Sedition Laws, the, 310. 

Anastasius, Emperor, 85. 

Anglo-Saxon state, the, 113-125; polit- 
ical customs brought by Anglo-Saxons 
to England, 113, 114; internal changes 
under the Heptarchy, 115; develop- 
ment of Royal Government, 115; 
powers of the King and the Earldor- 
men, 115; the shire-moot and Individ- 
ual Liberty, 116; the King's Theyns, 
and the Witenagemots, 117; Assem- 
bUes become part of the Government, 
117; conversion to Christianity, 118, 
119; functions of the Church, 119; in- 
fluence of the Church, 120; theChurch 
broader than the state, 120; the 
Church becoming Government, 121; 
absolutism in, 121; under King Al- 
fred, 122; Danish invasion and rule, 
123, 124; beginning of Feudal system 
in, 124; administrative system of the 
Danes and the demorahzation of Roy- 
alty, 124. 

Anselm, 147. 

Appeals Act, the, 324. 

Aquinas, Thomas, 164. 

Arabia, Mohammedanism in, 16. 

Aragonesi, the, 165. 

Archons, the. Government of Athens by, 
41, 42, 44-46. 

Areopagus, Court of the, 42-46. 



Argentina, Constitution of, 328 et seq.; 
355, 357- 

Argyle, Duke of, 216. 

Aristides, 44. 

Arminius, Duke of the Hessians, 82. 

Army Officers, the English Council of, 
216, 218-220, 223. 

Army, standing, creation of in France, 
182, 183. 

Arnulf, Bishop of Metz, 90, 92. 

"Articles of Confederation," the, 295- 
298. 

Asia, religious genius of, i; indepen- 
dent states of, 2; political history of 
China, 2-8; of Japan, 8-1 s; of Per- 
sia, 15-19; of Turkey, 19-26; effect 
on, of contact with Europe, 26, 27. 

Assembly of the Notables, the French, 

233- 
Athens, origin and pohtical development 

of, 40-45; war with Persia, 44; decay 

of, 46, 47. 
Augustine, 118. 
Augustus Princeps, 62. 
Austrasia, 90-93. 
Austria, absolutism in, 193; Revolution 

in, 243; Constitution of, 253 et seq. 

Bacon, Roger, 164. 
Barbarossa, 144. 

Baronial league, the English, 152. 
Batavian RepubUc, the, 243. 
Becket, Archbishop, 147. 
Bedloe, 227. 

Belgium, 245; Constitution of , 253 etseq. 
Benedict IX, 180. 
Benedictines, the, 167. 
Beringer, Duke of Friaul, 131. 
Bernhard, in Italy, 130. 
Blake's victory over the Dutch, 218. 
Boleyn, Anne, 173, 188, 189. 
Bolivia, Constitution of, 328 et seq.; 
population, 355-357. 



385 



386 



INDEX 



Bonaparte, Louis Napoleon, 242. 

Bonaparte, Napoleon, the Consulate of, 
239; overthrow of, 240; political trans- 
formation of Europe under, 243, 244. 

Bonaventura, 164. 

Boniface VIII, 94, 100, 146; conflict 
with Philip le Bel, 179, 180. 

Borgia, 165. 

Bourges, Church Council at, 183. 

Brandenburg, Margrave of, 191. 

Brazil, Constitution of, 328 et seq.; 
population, 35S-3S7- 

Brethren of Saint Jerome, the, 167. 

Buckingham, Duke of (George Villiers), 
203, 204; impeachment of, 205; as- 
sassination of, 206. 

Buddhism in Japan, 9, 10. 

Bulgaria, Constitution of, 253 et seq. 

Caesar, Government established by, 60; 
assassination of, 61. 

Caesaristic democracy, 42, 43, 45. 

Caius Canuleius, 55. 

Calonne, 233, 234. 

Capet, Hugh, 132. 

Carolingian Empire, the, conditions con- 
spiring for the creation of, 94-102; 
growth of the Manorial system, 95; 
invasion of the Moslems and the 
Saxons, 95; support of the Church 
secured, 96; reclamation of state do- 
main from the Church, 96, 97; crea- 
tion of the Holy Roman Empire, 99- 
102; Carolings made Kings by divine 
calling, 100; the Bishop of Rome and 
the States of the Church, loi; exten- 
sion of the Kingdom under Charles, 
10 1 ; Government and sovereignty, 
103; administrative system, 104- 
108; the Officials, 104; Cities and 
Manorial estates, 105; Bishop as 
Count, los; Manorial jurisdiction, 106; 
growth of the Feudal system, 106; the 
Assemblies, 107; Emperor the real 
lawgiver, 108; the Church and Indi- 
vidual Liberty, 108-110; establish- 
ment of the Missi Dominici, 110-112; 
extinction of Caroling dynasty, 131. 

Castile, league of the Cities of, 160, 175. 

Catherine of Aragon, 173, 187-189. 

Censors, the Chinese Council of, 5, 6, 8. 

Central America, Constitutions of the six 
states of, 345-348; character of the 
population, 348, 355-357' 



Charlemagne. See Charles the Great. 

Charles Albert, King of Savoy, 245. 

Charles the Bald, 130, 131. 

Charles the Great, 94; and the Eu- 
ropean Empire, loi; conference at Pa- 
derborn, loi; crowned Emperor and 
Augustus, 102; administrative policy 
of, 104-108; the Missi Dominici es- 
tablished by, I lo-i 1 2 ; and the Bishop 
of Rome, 136. 

Charles, Prince, 202-205. 

Charles I, of England, his struggle with 
the ParUament, 204-2 1 7 ; death of , 2 1 7. 

Charles II, of England, 223; policy for 
the restoration of Catholicism, 225- 
227; death, 228. 

Charles V, Emperor, 176, 188. 

Charles VII, of France, 182, 183. 

Charles IX, of Sweden, 198. 

Charles X, of France, 241. 

Childeric, 83. 

Chili, Constitution of, 328 et seq.; pop- 
ulation, 355. 

China, political history of, 2-8; Feudal 
system in, 2, 3; Constitution of 1906, 
7; Revolution of 1911, 7; Constitution 
of 1911, 7, 8. 

Ching Chun Wang, cited, 8. 

Chlotaire II, charter of liberties given 
by, 90, 91, 92. 

Christian Church, the, its appearance in 
Rome, 64; persecutions of, 65-69; or- 
ganization and power after 250 A. D., 
67; estabUshment of, as State Church 
of Roman Empire, 69; powers of in- 
tercession and asylum in behalf of 
Individual Liberty, 69-72; Clovis de- 
fender of, in Gaul, 85, 86; the de- 
fender of Liberty in early Frankish 
Kingdom, 87 ; reclamation of state do- 
main from, by the Carolings, 96, 97; 
the Bishop of Rome and the States of, 
loi; and Individual Liberty in the 
Carolingian system, 108-110; func- 
tions and influence in England, 118- 
121; development in the Middle Ages, 
134-148. 

Christian II, 198. 

Chun dynasty, China under the, 2, 3. 

Clarendon, Constitutions of, 147. 

Cl^menges, Nicholas de, Archdeacon of 
Bayeux, 167. 

Clement III, 142. 

Clement V, 181. 



INDEX 



387 



Clement VII, 173. 

Clisthenes and genuine Athenian de- 
mocracy, 43, 44. 

Clojo, 83. 

Clovis, 83; and Syagrius, 84, 83; de- 
fender of the Church in Gaul and Ro- 
man Proconsul, 85, 86; his Kingship 
established, 86, 87, 88. 

Clovis II, 92, 99. 

Coke, Sir Edward, 202, 206, 210. 

Colombia, Constitution of, 328 et seq.; 
character of population, 355-357. 

Comitia Centuriata, the, 50, 51, 53-55, 
57- 

Comitia Curiata, the, 49-51, 53, 55, 57- 

Comitia Tributa, the, 52-59. 

Committees of Correspondence, the, 291. 

"Compagnie di Ventura," the, 188. 

Concihae Plebis, the, 52. 

Concordat of Worms, 143. 

Confederation of the Rhine, the, 244. 

Confucianism, Imperial policy toward, 
4; triumph of, 5; decline of, under 
Manchu dynasty, 6. 

Confucius, 3 ; political philosophy of, 4. 

Conrad, Duke of Franconia, 131. 

Conrad II, Emperor, 139. 

Conrad, Prince, 142. 

Constantine, 69. 

Constitution, United States, sovereign 
power provided in, 299; Individual Im- 
munity against governmental power, 
300 et seq. 

Constitutional Government, nature of 
genuine, 370, 371. 

Constitutions, European, 253 et seq.; 
question of sovereign power in, 253- 
257; the Bill of Rights, 258; Individ- 
ual Immunity against governmental 
power, 258-264; the French Declara- 
tion of the Rights of Man, 260-262; 
the right of assembly, 263 ; right of pe- 
tition, of association, and other civil 
rights, 263, 264; guarantee of Individ- 
ual Liberty, 265-283; impeachment of 
officials, 265-270; Parliamentary Gov- 
ernment, 268; protection against en- 
croachments of Legislature, 270-283; 
structure of original Legislature, 271; 
the bicameral Legislature, 271, 272; 
parity of power in the two Chambers, 
272, 273; imparity of power and the 
budget, 273-275; suffrage qualifica- 
tions, 275-277; Upper Chamber more 



conservative than the Lower, 277- 
280; qualifications of eligibility to the 
Senate, 280, 281; uninstructed repre- 
sentation, 281; structure of the Legis- 
lature as guarantee of Civil Liberty, 
281-283; course of development in 
Legislative eligibility and sufi'rage 
qualifications, 283-285; Legislature 
and political society, 285, 286; South 
American states, 327-339; Mexican, 
340-345; Central American states, 
345-348; West Indian Archipelago, 
34Q-355- 

Continental Congress, the First, 292; 
the Second, 293-297. 

Conventicle Act, the, 225. 

Corporations, growth of in the United 
States, 364; nature of, 365; Govern- 
ment control over and the excise on, 
365, 366. 

Costa Rica, Constitution of, 345-348. 

Cranmer, 173, 189. 

Crassus, 59, 60. 

Crimean War, the, 247. 

Cromwell, Oliver, 213-216; poUcy of, 
214, 218, 219; attitude toward the 
Parliament of 1654, 220, 221; tyr- 
anny of, 221; death of, 222. 

Cromwell, Richard, 222. 

Cromwell, Thomas, 188, 189. 

Crusades, the, 142. 

Cuba, the Constitution of, 349-351; 
character of population, 356, 358, 
360. 

Customs Act, the United States, 361. 

Cylon, 42. 

Cyprian, Bishop, 135. 

Dagobert, vice-royalty of, in Austrasia, 

92; his success in Neustria, 92; death 

of, 92. 
Daimaos, policy of the, 10, 11. 
Danish invasion of England, 123, 124. 
Dante, 164. 
Danton, 239. 

Decemvirate, the first, 53. 
Decius, 66, 67. 
Declaration of Rights, the English, 229, 

230. 
Declaration of the Rights of Man, the 

French, 260-262. 
Defense of the Sacraments, the, 172. 
Delos Confederation, the, 44. 
De' Medici, the, 165. 



388 



INDEX 



Denmark, first constitutional conven- 
tion in, 246; Constitution of, 253 et 
seq.; late constitutional changes in, 
27s, 276, 287. 

Denmark-Norway, development of ab- 
solutism in, ig8. 

Deutsche Verfassungsgeschichle, 73. 

Diocletian, the Imperium of, 63; perse- 
cutor of the Christians, 66-68, 70. 

Divorce, of Lothair II, 138; the question 
of Royal, 173. 

Dominicans, the, 167. 

Dorian invasion, the, 36, 37. 

Draconian code, the, 41. 

Dred Scott case, the, 316-319, 360. 

Drusus, Marcus Livias, 59. 

Dutch Republic, Revolution in, 243. 

Dutch War, the, 218. 



Earldormen, the Anglo-Saxon, 114-117, 
124. 

Ecuador, Constitution of, 329 et seq.; 
population, 355-35?- 

Ecumenical Councils of the Church, the, 
167, 171, 172. 

Edgehill, battle at, 213. 

Edicts of Toleration, the, 69. 

Edward III, of England, 182. 

Eliot, John, 204-207, 210. 

England, FeudaUsm in, 133, 134; the 
Papacy and the Church in, 146-148; 
the Reformation in, 172-174; devel- 
opment of absolutism in, 184-189; 
War of the Roses, 185, 186; subordi- 
nation of ParUament to the Royal 
power, 186, 187; Tudor despotism, 
187; Cromwell's management of Par- 
liament, 188, 189; the Revolution in, 
201 et seq.; poUcy of James I, 201- 
203; the Parliament of 1614, 202; 
quarrel between King and Judges, 
202; Parliament of 1621, 203; the 
Spanish controversy, 203, 204; acces- 
sion of Charles I, 204; struggle be- 
tween King and Parliament, 204, 205; 
benevolences and forced loans, 205; 
the Petition of Right, 206; dissolu- 
tion of the Parliament of 1629, 207; 
plan of Wentworth and Laud for ab- 
solute Government, 207 ; extortions of 
the Royal Exchequer, 207, 208; ec- 
clesiastical supremacy of the Crown, 
208, 209; Episcopal Government re- 



pudiated in Scotland and arbitrary 
taxation opposed by Hampden, 209; 
the Scotch Covenant and the Short 
Parliament, 209, 210; the Long Par- 
liament of 1640, 210; acts undoing 
absolutism, 211; the condition in Ire- 
land, 211; attempt of the Commons 
to expel the Bishops from the House of 
Lords, 212; civil war, 212-217; Edge- 
hill and Marston Moor, 213; the pol- 
icy of Cromwell, 214; struggle be- 
tween Presbyterians and Non-con- 
formists for the mastery of Parlia- 
ment, 214, 215; conflict between 
Parliament and the Army, 215, 216; 
Royalists and Presbyterians routed at 
Wigan and Warrington, 216; de- 
mands of the Coimcil of Ofhcers of the 
Army, 216; Commons' declaration of 
sovereignty and execution of the King, 
217; the Army and its Coimcil of Of- 
ficers, 218-220; dissolution of the 
Rump ParUament, 218; the Praise- 
God-Barebones Parliament and its 
Instrument of Government, 219, 220; 
the Parliament of 1654, and Crom- 
well's tyranny, 220-222; restoration 
of the House of Lords, 222; Richard 
Cromwell, 222; the Convention and 
its work, 223-225; restoration of the 
King and the ancient Constitution, 
223, 224; triumph of the Cavaliers, 
225; restoration of the State Church, 
225; the Act of Uniformity, and the 
Conventicle Act, 225; the King and 
rehgious toleration, 226; plot for re- 
establishment of Roman CathoUcism, 
225-227; reactionary movements of 
King James, 228; Constitutional Con- 
vention of 1689 and the accession of 
William of Orange, 229; the Declara- 
tion of Rights, 229; sovereignty of 
Parliament result of Revolution, 230, 
231; present Constitution of, 253 et 
seq. 

Ephetse, Court of the, 41, 42. 

Ephors, College of, its powers in limiting 
autocracy, 38,39; downfall of, 40,46, 

Etats-Gen^raux, the, 179, 234-236. 

Europe, the Revolution in England, 
201-231; in France, 232-243; in the 
Netherlands, the Dutch Republic, 
and Switzerland, 243; in Italy, 243; in 
Spain and Portugal, 244; restoration 



INDEX 



389 



of the old authorities, 244; reappear- 
ance of revolution everywhere, 245- 
249; constitutional progress through- 
out, 24s, 246; the reaction of 1850, 
246; Crimean War and its results, 
247; Spanish Revolution of 1867 and 
latest Revolution in Portugal, 247; 
the Franco-Prussian War, 248; Rus- 
so-Turkish War, 248; Norway and 
Sweden, 249; results of the revolu- 
tionary movement in, 249-251; dif- 
ferences between Teuton and Latin in 
philosophy of the Revolution in, 251, 
252; present Constitutions of. See 
Constitutions. 
Exarchate of Ravenna, the, 97, loi, 136. 

Ferdinand, Emperor, 246. 

Ferdinand of Aragon, 175, 176. 

Feudal system, in China, 2, 3; in Japan, 
10; in Abyssinia, 29, 30; in the Anglo- 
Saxon state, 124; origin and growth 
of, 126-134, 151, 152; effect on the 
Church, 166. 

Feudatories, the, 131, 132. 

Fideles, the, 122, 123. 

Florentine RepubUc, the, 195, 196. 

Foscari, the, 165. 

France, the Papacy and the Church in, 
14s, 146; development of absolute 
Government in, 178-184; the judicial 
ParUaments, 178, 179; conflict with 
the Church, 1 79-1 81; the hundred 
years' war, 182; creation of a standing 
army, 182, 183; Royal authority over 
the Church, 183; aboUtion of the Par- 
liament of Paris in 177 1, and its recall 
by Louis XVI, 232; disordered fi- 
nances and proposed reforms of Tur- 
got and Necker, 233; results of partic- 
ipation in American Revolution, 233; 
the Assembly of the Notables, 233; 
the summoning of the Etats-G6n6raux 
and its constitution, 234; the Third 
Estate, 23s, 236; consolidation of the 
Estates into the National Assembly, 
236; Constitution of 1790, 236, 237; 
radical course of the Revolution, 237; 
flight, capture, and imprisonment of 
the King, 237; revision of the Consti- 
tution, 238; imprisonment of the 
Royal Family and the Convent, 238, 
239; the tyranny of Danton, Robes- 
pierre, and Marat, 239; Constitution 



of 179s, 239; the Consulate of Bona- 
parte, 239; the Imperium of Bona- 
parte and Individual Liberty, 240; 
restoration of the Bourbons, and es- 
tabhshment of Constitution of 1814, 
240, 241 ; the Revolution of July, 1830 
and the new Constitution, 241 ; Revo- 
lution of 1848 and Constitution of 
1848,242; Louis Napoleon Bonaparte 
and the Constitution of 185 1, 242; 
overthrow of Second Empire and 
present Constitution, 242; success of 
French arms under Bonaparte, 243, 
244; present Constitution, 253 et seq. 

Franciscans, the, 167. 

Franco-Prussian War, the, 248. 

Frankish Kingdom, the, development of 
Ducal oflSce and power in, 82; ad- 
vance of Royal system of Government 
in, 83; rebellion of Syagrius and loy- 
alty of Clovis, 84, 85 ; influence of the 
Bishops, 8s; establishment of Kingly 
office and tenure, 86; the Church 
as defender of Liberty, 87; the land 
system and the Manorial Lords, 87- 
89; the system of commendation, 89; 
Counts as Manorial Lords, 89; charter 
of hberties given by Chlotaire II, 90; 
Individual Liberty and aristocratic 
Government, 91 ; rule of Dagobert, 92; 
the period of the Rois Faineants, 92; 
93; the rule of Pippin, 93; reign of 
Louis the Pious over, 130. 

Frederick II, 144. 

Frederick the Great, the Monarchy of, 
191, 192. 

Frederic William IV, 246. 

Free Cities, the, development of, 157- 
161; relation between King and, 158- 
160, 17s, 176, 184. 

Fueros, the Spanish, 177. 

Gaius Graccus, 59. 

Georgia vs. Stanton, case of, 321. 

Germania, as portrayed by Tacitus, 
73~79; social distinctions in, 74-76; 
political and governmental institu- 
tions, 76-81; the tribal, the village, 
and the hundred Assemblies, 76-79; 
the idea of Royalty in, 79; form of the 
German state, 79; the guarantee of 
Civil Liberty in, 80, 81. 

Germany, development of absolutism in, 
190-193; constitutional Government 



39° 



INDEX 



in, 246; reaction of 1850, 246; pres- 
ent Constitution of, 248, 253 et seq. 

Gerson, Chancellor de, 167. 

Golden Bull, the, 190. 

Gondomar, Spanish Ambassador, 202. 

Goth, Bertrand de, 180. 

Gracchi, attempted reforms of the, 58, 
59- 

Greece, ancient, political system of, 36; 
the Spartan state, 36-40; the Athe- 
nian state, 40-47; states of, despotic 
Governments, 47; rule of Macedon 
over, 48; Revolution in, 245; present 
Constitution of, 254 et seq. 

Greeks, the, and the state, 35. 

Gregory III, 94. 

Gregory VII, 142, 145, 166. 

Gregory IX, 144, 145. 

Gregory the Great, 118. 

Grimoald, 99, 100. 

Guatemala, Constitution of, 345-348. 

Gustavus Adolphus, of Sweden, 198. 

Hamilton, Duke of, 216. 

Hampden, John, 205, 209, 213. 

Han dynasty, China under the, 4-6. 

Hawaiian Islands, the, 360. 

Hayti, Constitution of, 351-353. 

Helvetic Republic, the, 243, 

Henry II, 147. 

Henry III, of Germany, 140. 

Henry V, Emperor, 143. 

Henry VI, Emperor, 144. 

Henry VII, 186. 

Henry VIII, 172, 173, 187-189. 

Henry, Patrick, 292. 

Herodotus, 43. 

Hildebrand, 140, 142. 

Hippias, tyranny of, 43. 

Hohenzollern, the House of, 190-192. 

Hollis, 213. 

Holy Alliance, the, 245. 

Holy Hermandad, the, 160, 175. 

Holy Roman Empire, the, 94; condi- 
tions which led to its creation, 95-99; 
its work for civilization, 99; history of 
the creation of, 99-102; its system 
of Government and Liberty, 102-112; 
establishment of, 139; Bonaparte's 
invasion of, 244. 

Honduras, Constitution of, 345-348. 

Huguenots of Rochelle, the, 205. 

Hundred years' war, the, 182. 

Hungary, Constitution of, 253 et seq. 



Imperial system of Charlemagne, over- 
throw of, 130, 131. 

Income Tax, 366-372. 

Initiative, Referendum, and Recall, the, 
374-378. 

Innocent III, 148. 

Innocent IV, 144, 145. 

Inquisition, the Spanish, 176, 177. 

Ionian invasion, the, 40. 

Iran, ancient, 16. 

Ireland, Went worth's plan for absolu- 
tism in, 208; battle between Catho- 
lic and Protestant, 211. 

Isabella of Castile, 175. 

Isagoras, 44. 

Italy, reign of Bernhard in, 130, 131; 
effect of the Renaissance in, 165; 
development of absolutism in, 190, 
193-197; the Duchy of Milan, 193; 
the Republic of Venice, 194; the Flor- 
entine Republic, 195, 196; Naples, 
197 ; consoUdation of the States of the 
Church, 197; the Revolution and the 
Napoleonic system, 243, 244; consti- 
tutional Government in, 245, 246; 
present Constitution, 253 et seq. 

Ito, Marquis of, 12. 

James I, 201-204. 

James II, 228; reactionary movements 

of, 228. 
Janizaries, the, 21, 22. 
Japan, conquest of, 8, 9; the Mikado's 

absolutism in, 9, 12; Feudal system 

in, 10; under the Shogunate, 11, 12; 

Constitution of 1889, 12-15. 
Jenkins, Governor, of Georgia, 320. 
Jesuit Reaction, the, 170. 
John, King. 134. 
Johnson, President, 320, 323. 
Joseph II, Emperor, 193. 
Jurists, the, rise of, 158. 
Justiciar, the Grand, 177. 

King's Theyns, the Anglo-Saxon, 117, 

121, 124. 
Knighthood, Orders of CastiUan, 176. 

Lafayette, 237. 

Lanfranc, 147. 

Langton, 148. 

Laud, Archbishop, 204; his plan for 

English National Church, 208, 209, 

211. 



INDEX 



391 



Leo III, 04, loi, 102. 

Lex Licinia, the, 55. 

Lex Publilia, the, 53. 

Lex Sacra ta, the, 52. 

Lex Valeria, the, 51. 

Liberia, 28, 29. 

Lincohi, President, 318, 319. 

Lombards, the, in Italy, 96. 

Lothair, 130, 131, 136. 

Lothair II, the divorce case of, 138. 

Loughborough vs. Blake, case of, 361. 

Louis IX, 178. 

Louis XI, 182, 183; policy of, 184. 

Louis XIV, 226. 

Louis XV, 232. 

Louis XVI, 232-238. 

Louis XVIII, 240. 

Louis Philippe, Duke of Orleans, 241. 

Louis the Pious, reign of, over Prankish 

Empire, 130. 
Luther, Martin, 169, 172, 187. 
Luther vs. Borden, case of, 321. 
Luxemburg, Constitution of, 253 et seq. 
Lycurgan, Constitution, the, 37-39. 

McCardle case, the, 322, 323. 

McKinley, President, 358. 

Macedon, rule of, over Greece, 48. 

Magnus, Albertus, 164. 

Mahomet, religion of, 16, 17. 

Manchu dynasty, China under the, 6. 

Manorial estates, the, 129, 155. 

Manorial Lords, the, 87-89, 95, 106, 
107. 

Marat, 239. 

Marbury vs. Madison, the case of, 310- 
313. 315- 

Marcus Aurelius, 66. 

Marius, the Consulship of, 59. 

Marshall, Chief Justice, quoted, 310- 
312, 314, 315. 

Marston Moor, battle of, 213. 

M artel, Charles, 94. 

Menelek, Emperor, 30. 

Merovius, 83. 

Merryman case, the, 319. 

Mersen, the compact of, 131. 

Mexico, the Constitution of, 340-343; 
sovereignty in the Constitution, 340; 
the Bill of Rrights, 341; guarantee of 
civil rights, 342; the Judiciary, 342, 
343; anarchy and despotism in, 343, 
344; character of the people, 344, 345, 
3SS-3S7. 



Middle Ages, the, definition of, 126-151; 
origin and growth of Feudal system, 
126-134; overthrow of Imperial sys- 
tem, 130,131; extinction of Carolings 
and triumph of the Feudatories, 131; 
nature of the new Monarchy, 132; 
development of the Church and the 
Papal system, 134-148; the popula- 
tion, 148-150; method of thought 
and reasoning, 150, 151; failure of 
Feudal system in regard to Individual 
Liberty, 151- 153; the Church and 
Civil Liberty, 153-155. 

Mikado, Government of the, 9-12. 

Milan, the Duchy of, 193. 

Milligan case, the, 320. 

Minamoto Yoritomo, Daimao, 10. 

Mirabeau, 236. 

Missi Dominici, the, no; functions of, 
III, 112, 122, 146. 

Mississippi vs. Johnson, the case of, 320. 

Mohammedanism, influence of, in Per- 
sia, 16-18, 19; in the Ottoman Em- 
pire, 20-23; in Morocco, 31-33; and 
constitutional Liberty, 34. 

Monarchy, the, weakening of, by Feu- 
dal system, 130, 131; revival of, 157 
et seq.; the Free Cities, 157-161; the 
Renaissance, 161-166; the Reforma- 
tion, 166-174; development of abso- 
lutism in Spain, 175-177; in France, 
178-184; in England, 184-189; in 
Germany, 190-193; in Italy, 193-197; 
in Sweden, 197, 198; in Denmark- 
Norway, 198; in Russia, 198, 199; 
beneficial results to civilization, 199, 
200. 

Monmouth, Duke of, 228. 

Monroe Doctrine, the, 373. 

Montagu, 204. 

Montenegro, Constitution of, 253 et seq. 

Morocco, 28; poHtical system of, 31- 
33; power of the Ulemas' College, 32, 
33- 

Mujtahid of Kerbela, the, 18. 

Naples, 197. 

Naseby, battle at, 214. 

National Constituent Assembly, the 

French, 236-239. 
Necker, 233, 234. 
Netherlands, Revolution in the, 243; 

Constitution of, 253 el seq. 
Neustria, 90-93. 



392 



INDEX 



Nicaragua, Constitution of, 345-348. 
Nicholas I, 138. 
Nogaret, 180. 

Norway, independence of, 249; present 
Constitution, 253 el seq. 

Gates, 227. 

Octavian, prerogatives of, 61-63. 

Odoacer, 84. 

Olivarez, 203. 

Osmanli, the, settlement of, in Asia 
Minor, 20-22. 

Ottoman Empire, the, establishment of, 
ig, 20; Mohammedanism in, 20-23; 
power of the priesthood, 21; trans- 
formation of miUtary system and es- 
tablishment of the Harem, 21,22; ef- 
fect on, of contact with Europe, 21, 
22; decadence of , 2 2 ; Constitution of 
1876, 22, 23; Revolution of 1908 and 
the advent of the Young Turks, 23; 
provisions of present Constitution, 
23-26. 

Panama, Constitution of, 345-348. 

Papacy of Rome, the, its work for civ- 
ilization, 97-99; historically neces- 
sary, 137; election by the Cardinals, 
140; divine origin of, disputed, 169, 
170;' seat of, transferred to Avignon, 
180, 181. 

Paraguay, Constitution of, 328 et seq.; 
population, 355-357- 

Parliament of Paris, the, 179; its aboli- 
tion and recall, 232, 234. 

Parliamentary Government, 268, 269. 

Pericles and democracy, 45, 46. 

Perry, Commodore, 11. 

Persia, poUtical history of, 15-19; influ- 
ence of Mohammedanism in, 16-18, 
19; National Council, 18, 19; Con- 
stitution of 1906, 19; Revolution of 
1909, 19; war with Athens, 44. 

Peru, Constitution of, 329 et seq.; popu- 
lation, 355-357. 

Peter the Great, 199. 

Petition of Right of 1628, English, 206. 

Petrarcha, Francesco, 162. 

Philip Augustus, 145, 146. 

Philip II, of Spain, 176, 177. 

Philip IV, of France, 178-181, 

Philip of Valois, 182. 

Philippines, the, 359, 360. 

Pippin of Heristal, 93, 94. 



Pippin of Landen, 90, 92, 99. 

Pippin the Short, 94, 100, loi. 

Pisistratus, 43. 

Pompey, 59, 60. 

Port Bill and Regulating Act, the, 291. 

Porto Rico, 359, 360. 

Portugal, Bonaparte in, 244; constitu- 
tional Government in, 245; reaction of 
1850 in, 247; present Constitution, 253 
ei seq. 

"Pragmatic Sanction," the, 183. 

Praise-God-Barebones Parliament, the, 
219. 

Prussia, the Monarchy of, 190-192. 

Pym, John, 210, 212, 213. 

Randolph Resolutions, the, 309. 

Recall, the, applied to elected officials, 
375-377; to Judges and Judicial de- 
cision, 377, 378. 

Reconstruction Acts, the, 321-324. 

Referendum, the, in United States Gov- 
ernment, 375. 

Reformation, the, 166-174; condition of 
the Church in fifteenth century, 166; 
creation of the Monastic orders, 167; 
morals and discipline of the clergy, 
167, 168; demands of, in regard to 
theological doctrines, 168, 169; influ- 
ence on Government, civil and ecclesi- 
astical, 169-174; the Counter-Refor- 
mation, 170; the National Church 
idea, 170-172; the movement in Eng- 
land, 172-174; political results, 174; 
opposition in principle to absolute 
Monarchy, 201. 

Renaissance, the, 161-166; collection of 
classic manuscripts, 162; invention of 
printing, 163; the forerunners of, 164; 
character of the movement, 164, 165; 
effect of, in Italy, 165 ; its influence on 
Europe, 166; opposition in principle 
to absolute Monarchy, 201. 

Riparian Franks, the, 88. 

Robespierre, 239. 

Rois Faineants, the, 92. 

Romanoff, Michael, Czar of Russia, 198, 

Rome, political institutions of ancient, 
49; functions of Senate and the Co- 
mitia Curiata, 49; struggles between 
Patrician and Plebeian orders, 50-56; 
the Comitia Centuriata, 50; over- 
throw of the Kingship and establish- 
ment of Patrician Republic, 51; the 



INDEX 



393 



Lex Valeria, 51; the Lex Sacrata 52; 
the ComitiEe Tributa, 52; the first 
Decemvirate, 53; "the Twelve Ta- 
bles," S3; eligibiUty of Plebeians to 
Consulship, 55; becoming an Empire, 
56; transformations of Constitution 
under influence of conquests, 57; rule 
of the Senate, 57; decay of Roman 
character and ruin of agriculture, 58; 
attempted reforms of the Gracchi, 58, 
59; downfall of Repubhcan Constitu- 
tion under the Dictatorship of Sulla, 
59; Government reconstructed by 
Ca;sar, 60; anarchy following assassi- 
nation of Caesar, 61; under Octavian, 
61-63; the Imperium of Diocletian 
and the downfall of constitutional 
Liberty, 63; reUgious toleration, 64; 
appearance of Christianity in, 64; 
persecutions of the Christians, 65-69; 
estabUshment of Christian Church as 
State Church, 69; Individual Liberty 
imder protection of the Church, 70- 
72. 

Roumania, Constitution of, 253 et seq. 

Rump Parhament, the English, 217, 
218, 223. 

Russia, development of absolutism in, 
198, 199; constitutionalizing of, 248; 
present Constitution, 253 et seq. 

Saldanha, Coimt of, 245. 

Salian Franks, the, 79, 83; the law book 

of, 86, 88. 
Salvador, Constitution of, 345-348. 
Santo Domingo, Constitution of, 353- 

355- 

Saxony, the Monarchy of, 192. 

Schmoller, Professor, 381. 

Scotland, Episcopal Government repudi- 
ated in, 209-211. 

Septimius Severus, 66, 67. 

Servia, Constitution of, 253 et seq. 

Servius Tullius, reforms of, 49, 50. 

Sforzas, the, 165. 

Shaftsbury, Earl of, 228. 

Sharkey, Ex-Governor, of Mississippi, 
320. 

Sheikh ul Islam, the, 21, 23. 

Shintoism, 10, 11. 

Shire-moots, the Anglo-Saxon, 116. 

Shogunate, Japan under the, 10-12. 

Sigebert, 92. 

Solon, pohtical reforms of, 42, 43. 



Solonian Constitution, the, 42, 43. 

South America, constitutional systems 
of the states of, 327-331; structure of 
the Government, 331; distribution of 
governmental powers, 332, 333; the 
Legislature and the length of legisla- 
tive terms, 333-334; power of one 
Chamber to overcome opposition of 
the other, 334-336; the election meth- 
ods, 336; the position and power of 
the Judiciary, 337, 338; the Argen- 
tine RepubUc, 339; character of the 
population, 355-357. 

Spain, the cities and the national Mon- 
archy in, 160; the absolute Monarchy 
in, 175-177; nationalizing of the 
Church in, 176; the Fueros, and the 
destruction of the Justiciar, 177; con- 
troversy with England, 203; Bona- 
parte in, 244, 327; outbreak of 1836 
and adoption of Constitution, 245; 
Revolution of 1867, 247; present Con- 
stitution, 253 et seq. 

Spanish- American War, the, 325, 358- 
360. 

Spartan Commonwealth, social char- 
acter of, 37; political system of, 38, 
39; decay of, 40; invasion of Athens 
by, 43, 44. 

Stephen III, 94, 100. 

Sulla, the Dictatorship of, 59. 

Sunderland, Robert, Earl of, 231. 

Supremacy, the Act of, 173, 187-189. 

Sweden, development of absolutism in, 
197, 198; separation of Norway and, 
249; present Constitution of, 253 et 
seq. 

Switzerland, the Revolution in, 243; 
present constitution of, 253 et seq. 

Syagrius, the rebeUion of, 84, 85. 

Tacitus, Publius Cornelius, the Germania 

of, 73-79- 
Taney, Chief Justice, 317, 318. 
Templar Order of Knights, the, 181. 
Terentilius Arsa, 53. 

Thirty Years' War, the, 174, 190. 
Tiberius Graccus, 58, 59. 
Tokugawa leyas, Daimao, 11. 
Torquemada, 176. 
Towns, royal incorporation of, 158. 
Trajan, 66. 



394 



INDEX 



Trent, the Council of, i68, 170. 
Tribal Assembly, the, of the primitive 

German state, 76-80. 
Tribunes, the Roman, 52-sg. 
Tsin dynasty, China under the, 3, 4. 
Turgot, 233. 

Turkey. See Ottoman Empire. 
Turks, the Young, 23. 
"Twelve Tables, the," 53. 

Ulemas, the, power of, 21, 23, 26; Col- 
lege at Fez, 32, 33. 

"Unam Sanctam," the, 180. 

Uniformity, the EngUsh Act of, 225. 

United States, the constitutional devel- 
opment in, 288; position of the Brit- 
ish crown in relation to the thirteen 
Colonies, 289, 290; Colonies under 
British law, 290; growth of the Col- 
onies, 290; the Committees of Cor- 
respondence, 291; first Continental 
Congress, 292; the Second Continen- 
tal Congress, 293 et seq.; States' rights 
developments and the "Articles of 
Confederation," 294-297; assembly 
of the Constitutional Convention, 
297; attitude of Rhode Island toward 
the Constitution, 298; adoption of 
the Constitution and its fundamental 
principles, 298-306; original defect of 
the national bill of rights, 302; struc- 
ture of the Government, 303, 304; 
elective character of the Government, 
304; the check-and-balance system, 
304, 305; position and power of the 
Judiciary, 306 et seq.; contest with 
State of Georgia, 313-315; Supreme 
Court decision in the Dred Scott case, 
315-318; in the Merryman case, 319; 
in the Milligan case, 320; in the case 
of Mississippi vs. Johnson, 320; Geor- 
gia vs. Stanton, 321; Luther vs. Bor- 
den, 321; the McCardle case, 322, 
323; thirteenth and fourteenth con- 
stitutional amendments, 324; recent 
change of public opinion concerning 
Government and Liberty, 325, 358; 
war with Spain and territorial expan- 
sion, 358 el seq.; Government of terri- 
tories under the Constitution, 359- 
363; Customs Acts and decisions of 



the Supreme Court, 361-364; Gov- 
ernment control over Corporations, 
364-366; the income tax, 366-372; 
the new poUtical system, 373-374; 
characteristics of the people, 373; the 
initiative, referendum, and recall, 374- 
378; the recall and weak administra- 
tion of Government, 375-377; the 
Judges and the recall, 377, 378; retro- 
gression in the last twenty years, 378; 
the path of true progress, 379; Gov- 
ernment and social uphft, 380, 381; 
effect of the growth of Government, 
382. 

Urban II, 142. 

Uruguay, Constitution of, 329 et seq.; 
355- 

Vasa, Gustavus, 198. 

Venezuela, Constitution of, 329 ei seq.; 

character of population, 35S-3S7- 
Venice, the Republic of, 194. 
Visconti, the, 165. 

Waitz, George, 73. 

War of the Roses, the, 185, 186. 

Wentworth, Earl of Strafford, 207, 208, 
210, 211. 

West Indian Archipelago, the. Constitu- 
tions of the three states, 349-355! the 
Cuban Constitution, 349-351; the 
Haitian Constitution, 351-353; Con- 
stitution of Santo Domingo, 353-355! 
character of the population, 355-357- 

Westphalian compact, the, 190, 191. 

William of Normandy, 133, 147. 

William of Orange, 228; accession to 
throne of England, 229, 230; his Min- 
isters and the ParUament, 231. 

Witenagemots, the Anglo-Saxon, 117, 
121, 122, 124. 

Wolsey, Cardinal, 187; his policy and 
fate, 188, 189. 

Won Wang dynasty, China under the, 

3, 4- 
Worcester vs. Georgia, case of, 314, 315. 

Ximenes, Cardinal, 176. 

Zeno, Emperor, 84. 



W%0 









I 



^/- V 



A 



■^■ 






cf-^ - 



V^' 



.r 












.^ 






%^'^ 
^^^' '^/> 



^ * " ^ '^ 

C3 ^ ■» _ ^ 



y. V 



^^ 



oS X, 












.'^• 



■i>^ 



..> 






K^^^' % 






-^^ 



\0 ^ 












^^^ 


V 








x^ 


°<. 


















' Ci 


0^ 








-"t^ 


. \- 




%^'-''-'^/ 




-x*^-^yV'o.% 


'^^..-f^-' 






^^^ ^.^ '-% 




^^^ 




c 





1-0 



^^^. 









j^ 






A 



^ ■> * 
r .<? St 



<'^ ^ , X * A 



.^r '^^.,. 



•^,. "v 



-0' 



.-^^ 






^, .-^^ 






"bo^ 






,0 



-iS' 






\ 






,-A V -^ ~i " '''' 









'^. .'^■ 



.nV -p. 



s^-^. 










'' 




■'^^• 


.^^ 










^s 


%: 


s. 


'"".r. 




^^ 







<^'.^^, 



v^ v> 



i^:C 






if * S 1 ^ \\ s ■> " 



■'C. .^' 



^;^a^/' 



>^ 



xV -f- 




-C-^' 



%// 



- >. 






,0 o 



."^ f'''\ 



^.r^^ 



0^ 



,0- 
0^ r 






,0 o 



\ -■ -■ 



"oT 



fry ,^^^ *'.;'>^^".- o> ., ';; 






o^ -t/. 






'^(/Jpl* ^'^ 







'c 0^ 






"^z. v.-iN' 



>. .'^^ 



.^-> '^>... % 



y;.,. 



LIBRARY OF CONGRESS 





III mil mil nil II 
01 1 797 435 2 , 



t 




^ 


Bkmsn;:, 



